COLUMBIA  LIBRARIES  OFFSITE 

AVbH^  -INt  A-i  I  S  RtSTRICTED 


AR01419439 


^  V  ?>  !>  f>  1 


When  you  leave,  please  leave  this  hook 

Because  it  has  heen  said 
" Ever'thing  comes  t'  him  who  waits 

Except  a  loaned  hook." 


Avery  Architectural  and  Fine  Arts  Library 
Gift  of  Sr:YMouR  B.  Du[^st  Old  York  Library 


THE 


l^ATUEE,  EXTEISTT  ANT>  IIISTOEY 

^  1  J  OF  THE  JURISDICTION  OF 

OF   THE    STATE   OE  NEW-YOHK. 


Diu'..^-.x.ED  BY 

OPINION 


HoK.   CHARLES    P.  DALY, 

First  Judge  op  the  Court  op  Common  Pleas  for  the  City  and  County  op 
New-York,  acting  as  Surrogate 


IN  THE  MATTER  OF  THE  ESTATE  OF 


JOSEFH  W.  BRICK,  deceased. 


Printed  by  Order  of  the  Board  of  Supervisors. 


JOH^  A.  GRAY,  PRINTER,  STEREOTYPER,  AND  BINDER, 

FIEE-PROOF  BUILDINGS, 
CORNER  OF  FRANKFORT  AND  JACOB  STREETS. 

1863. 


Digitized  by  the  Internet  Archive 
in  2013 


http://archive.org/details/natureextenthistOOdaly 


OF  THE  CITY  AND  COUXTY  OF  NEW-YORK. 
KTovember  2G,  1862. 
Hpx.  CHARLES  P.  DALY,  LL.D., 

Acting  as  Surrogate* 
I?^    THE    MATTER    OE    THE    ESTATE  OE 

JOSEPH  ^Y.  BRICK,  deceased. 
— •  •  •  — - 

COUNSEL. 

Hon.    MURRAY  HOFFMxVX,  LL.D., 

/(?/'  the  Petitioner. 

Hox.  LEWIS   B.  WOODRUFF,  LL.D., 
RICHARD  O.  GORMAX,  Esq., 

/or  the  Exccu.for. 

Hox.  ALEXANDER  W.  BRADFORD,  LL.D., 

for  the  other  Heirs, 

 •  •  •  

PROCTORS. 
JOHN  A.  STOUTENBERGH,  Esq.,  for  the  Petitioner, 
^  CUMMINGS,  ALEXANDER  &  GREEN,  Esqs.,  for  the  Executor. 
GABRIEL  VAN  COTT,  Guardian  ad  litem  for  Infant  Heirs. 


*  Surrogate  West  having  died  during  his  terra  of  office.  Judge  Daly  diseliarged 
the  duties  of  Surrogate  from  Julv  S  to  December  1,  1SG2. 


SYNOPSIS. 

Nature  and  extent  of  the  jurisdiction  of  the  Surrogates'  Courts  of  the  State 
of  New- York. 

Investigation  of  the  history  of  this  jurisdiction  from  the  year  1646  to  the 
present  time :  under  the  Dutch,  during  the  Colonial  rule  of  the  Eng- 
lish, and  under  the  State  Government. 

The  nature  of  the  Ecclesiastical  jurisdiction  of  England,  and  the  extent  to- 
which  it  prevailed  in  the  Colony  of  New- York,  with  the  history  of  the 
Prerogative  Court,  the  Court  of  Probates,  and  other  tribunals  exer- 
cising co-ordinate  jurisdiction  with  the  Surrogates'  Courts. 

Enumeration  of  all  the  powers  possessed  by  the  Surrogates  at  the  time  of 
the  passage  of  the  Revised  Statutes. 

The  distinction  which  exists  between  the  powers  of  the  Surrogate'o  Court 
and  the  general  power  of  a  Court  of  Record,  or  of  a  Court  of  Equity 
to  review  their  proceedings  or  to  order  a  rehearing. 

The  cases  in  which  a  Surrogate  can,  and  when  he  cannot,  open  a  decree. 

Accounting  in  the  Surrogate's  Court — its  object,  effect,  and  history. 

The  mode  in  which  infants,  interested  as  parties,  must  be  cited. 

Power  of  the  Surrogate  to  appoint  guardians  ad  litem  for  them. 

How  far  the  act  of  the  guardians  ad,  litem  is  binding  upon  the  infant. 

When  the  decree  of  the  Surrogate  is  conclusive  upon  them. 

When  they  are  concluded  by  a  decree  upon  a  final  accounting. 

The  marriage  of  a  minor,  if  a  female,  determines  and  puts  an  end  to  her 
guardianship. . 


OPINION. 


This  is  an  application  on  behalf  of  an  infant  devisee  of  the 
testator,  to  open  a  decree  made  by  the  late  Surrogate  upon  a 
final  accounting  of  the  acting  executor,  upon  the  ground  that 
many  unjust  and  illegal  charges  were  allowed,  to  her  detriment 
and  injury. 

The  petitioner,  who  has  not  yet  attained  her  majority,  is  a 
married  woman.  She  was  a  daughter  of  the  testator,  and  her 
mother  was  appointed  by  the  will  her  testamentary  guardian. 
An  objection  is  taken  that  this  application  must  be  made  by 
her  guardian, Ind  not  by  herself,  while  on  her  part  it  is  insisted 
that  her  marriage  determined  and  put  an  end  to  the  testa- 
mentary guardianship  of  her  mother. 

In  several  parts  of  England  the  marriage  of  a  female  by  local 
usage  terminated  her  guardianship,  {Bohun's  Customs  of  Lon- 
don, 315;  ILev,  162;  1  Sid.  250;  1  Bcnj,  116,)  and  a  provi- 
sion to  the  like  effect  was  incorporated  in  one  of  our  Colonial 
Statutes,  {Act  of  1692,  Laws  of  Neiu-YorJc,  Smith  and  Living- 
ston's edition,  p.  15,)  but  at  first  the  Courts  were  unwilling  to 
recognize  it  as  a  general  rule. 

^It  is  said  in  Eolle's  Abridgment,  (1  i?oZ/e,  288,)  that  if 
Baron  and  Feme  suffer  a  common  recovery  and  appear  by  at- 
torney, the  feme  being  under  age,  it  is  error,  for  she  should 
appear  by  guardian  ;  but  the  point  was  doubted  by  two  of  the 
Judges. 


6 


In  Freeman  v.  Biddington,  {Ve7it.  185;  2  Lev.  88;  2  Ifehle, 
878,)  wbich  was  an  action  of  assumpsit  against  baron  and  feme 
on  a  contract  for  wares  by  the  feme  dum  sola,  in  which  they 
both  appeared  by  attorney,  it  was  held  after  judgment,  by  two 
of  the  Judges,  that  it  was  error, — that  the  wife  should  have 
appeared  by  guardian. 

But  in  a  later  case  (Mendes  v.  Mendes,  1  Ves.  Sen.  90,)  it 
was  held  by  a  very  great  authority,  Lord  Hardwicke,  that 
though  the  marriage  of  a  male  ward  did  not  determine  the 
guardianship,  the  marriage  of  a  female  ward  did,  and  he 
declared  that  it  was  so  adjudged  in  the  case  of  Lord  Shaftes- 
bury, and  again  in  Koach  v.  Gar  van,  (1  Ves.  Sen.  159*,)  he 
declared  that  the  Court  would  not  appoint  a  guardian  after 
marriage. 

These  two  latter  cases  are  referred  to  by  Macpherson  in 
his  work  on  infants,  p.  90,  as  authority  for  the  rule  that  testa- 
mentary guardianship  is  not  determined  by  the  marriage  of  a 
male  ward,  but  that  the  guardianship  of  females  is  determined 
by  their  marriage. 

He  remarks  that  it  is  a  necessary  consequence  of  the  rights 
which  a  husband  acquires  by  marriage  with  regard  to  the 
wife's  person  and  property  ;  and  as  the  reason  he  assigns  is  a  sat- 
isfactory one,  I  shall  treat  the  rule  as  established,  and  over- 
rule the  objection. 

The  next  objection  goes  to  the  jurisdiction  of  the  Court.  It 
is  insisted  that  Surrogates'  Courts  in  this  State  are  Courts  of 
special  and  limited  jurisdiction,  and  that  if  the  parties  in  inter- 
est have  been  duly  cited,  and  the  Surrogate  has  pronounced  his 
sentence  or  decree,  he  has  no  authority  afterwards  to  revoke, 
alter  or  amend  it,  except  in  certain  specified  cases,  and  that 
this  is  not  one  of  them.  On  the  part  of  the  petitioners,  on  the 
other  hand,  it  is  claimed  that  the  repeal  of  the  provision  in  the 
Revised  Statutes,  by  which  the  Surrogates'  Courts  were  limited 
to  the  powers  therein  expressly  enumerated,  has  restored  these 


7 


Courts  to  every  authority  which  they  possessed  prior  to  the 
revision  of  1829.  That  they  have  now  the  same  general 
powers  which  the  Ecclesiastical  or  Spiritual  Courts  of 
England  exercised  in  testamentary  matters,  and  in  cases  of  in- 
testacy, and  can,  after  decree  or  sentence  pronounced,  give  the 
same  species  of  equitable  relief,  if  mistakes  or  errors  have  been 
committed,  or  injustice  has  been  done,  which  may  be  had  in  a 
Court  of  Equity  after  a  decree  has  been  rendered. 

In  the  Eevised  Statutes  the  powers  conferred  upon  Surro- 
gates' Courts  were  specifically  defined,  and  it  w^as  declared  that 
those  which  were  therein  enumerated  should  be  exercised  in 
the  cases  and  in  the  manner  prescribed  by  the  Statutes  of  the 
State,  and  in  no  oilier^  and  that  no  Surrogate  should,  under  pre- 
text of  incidental  power  or  constructive  authority,  exercise  amj 
jurisdiction  whatever  not  expressly  given  by  some  Statute  of 
the  State.    (2  Eev.  Stat.  220,  §  1.) 

In  recommending  this  very  stringent  provision  for  adoption, 
the  Eevisors  in  their  notes  said  that  the  jurisdiction  of  Surro- 
gates w^as  very'undefined,  and  might  give  rise  to  most  serious 
questions ;  that  the  foundation  of  the  authority  exercised  by 
the  Colonial  Governors,  and  its  extent,  were  questions  which 
had  already  much  agitated  the  Courts  ;  that  the  idea  was  enter- 
tained by  some  that  these  Courts  possessed  all  the  powers  and 
jurisdiction  of  the  Ecclesiastical  Courts  of  England,  and  that 
their  own  researches  had  satisfied  them  that  a  clear  and  dis- 
tinct limitation  of  the  powers  of  these  tribunals  was  very  neces- 
sary, and  that  they  had  accordingly  attempted  it  by  an  enu- 
meration of  the  powers  conferred. 

This  restriction  proved  to  be  a  very  unwise  one.  The  ap- 
prehensions w^hich  led  to  it  were  more  imaginary  than  real. 
The  effect  of  it  was  to  create  questions  of  doubt  and  difii- 
culty,  and  to  embarrass  the  Surrogates  greatly  in  the  exercise- 
of  their  ordinary  duties.  It  was  consequently  repealed  in 
1837.    {Laics  of  1837,  p.  536,  §  71.) 


8 


The  effect  of  this  repeal  came  under  consideration  in  the 
Court  of  Appeals  in  the  late  case  of  Sipperlj  v,  Baucos,  24 
New -York  B.  46;  and  it  was  there  held  by  the  Judge  who 
delivered  the  opinion  of  the  Court,  Mr.  Justice  James,  that  the 
effect  of  it  was  to  restore  to  these  Courts,  except  where  they 
were  particularly  restricted  by  Statutory  enactments,  the  same 
powers  substantially  which  they  possessed  before  the  Revised 
Statutes,  together  with  those  powers  which  were  incidental 
and  necessary  to  enable  them  to  discharge  the  duties  imposed 
upon  them. 

The  question  then  arises  what  were  the  powers  vested  in 
these  Courts  before  the  Revised  Statutes  ? 

This  is  now  a  matter  of  great  practical  importance  in  this 
Court,  as  questions  analogous  to  the  one  now  under  considera- 
tion may  constantly  arise  hereafter.  Mr.  Justice  James,  in 
Sipperly  v.  Baucos,  supra,  says  that  before  the  Revised  Statutes 
the  powers  and  jurisdiction  of  these  Courts  were  undefined, 
that  the  law  respecting  them  and  the  subjects  of  their  cog- 
nizance were  defective,  ambiguous,  and  irreconcilable,  apd 
the  practice  and  decisions  uncertain  and  contradictory.  This 
is  in  consonance  with  the  opinion  expressed  by  the  Revisors  ; 
and  that  such  an  impression  should  prevail  is  very  natural, 
as  the  whole  subject  has  hitherto  been  involved  in  a  great 
deal  of  obscurity.  This  impression  is,  however,  erroneous. 
The  jurisdiction  of  these  Courts  before  the  Revised  Statutes 
was  exactly  defined,  but,  as  the  Revisors  found,  exceedingly 
difficult  to  ascertain.  Its  history  was  very  complicated,  for 
it  had  undergone  many  mutations  and  changes,  and  as  there 
were,  especially  during  the  Colonial  period,  other  tribunals' 
exercising  co-ordinate,  as  well  as  additional  powers,  the 
whole  subject  became  so  intermingled,  that,  without  knowing 
exactly  what  was  conferred  upon  these  other  tribunals,  it 
was  impossible  to  distinguish  what  the  Surrogates  did  and 
what  they  did  not  possess.    The  information  necessary  to 


9 


explain  it  is  now  to  be  gathered  from  a  long  series  of  manu- 
script records,  from  contemporary  Colonial  documents,  some  of 
which  have  been  published,  and  others  not,  and  from  early 
Colonial  statutes — with  all  of  which  I  had  occasion  some  years 
ago  to  become  familiar, — which  will  enable  me  to  separate  this 
hitherto  entangled  subject,  and  show  exactly  what  powers 
were  vested  in  the  Surrogates ;  but  to  do  so  it  will  be  neces- 
sary to  trace  the  course  of  this  jurisdiction  from  the  earliest 
period  of  our  Colonial  history  to  the  passage  of  the  Kevised 
Statutes. 

When  the  Colony  of  New- York,  or,  as  it  was  then  called, 
New- Amsterdam,  was  settled  by  the  Dutch,  all  judicial  power 
was  vested  in  a  Council  composed  of  the  Director-General,  the 
Yice-Director  and  the  Scout  Fiscal  (1  Col.  Doc.  of  New  -  York, 
160.)  Afterwards  a  Court  was  established,  of  which  the  Yice- 
Director  was  the  presiding  Judge,  having  associated  with  him 
members  of  the  Council,  and  in  which  the  Governor  or  Direc- 
tor-General himself  occasionally  presided.  Before  this  tribu- 
nal all  mattery  pertaining  to  succession  to  estates,  whether 
real  or  personal,  were  disposed  of  according  to  the  Dutch. 
Roman  law,  the  custom  of  Am.sterdam,  and  the  law  of  Aas- 
dom.  (The  Vertoogh^  or  Remonstrance  of  ]^ew- Netherlands^ 
translated  by  Dr.  O'Callaghan,  89,  59;  1  Col.  Doc,  160;  4 
Documentary  History  of  New-York,  69  ;  Daly's  Historical  Sketcli 
of  the  Judicial  Trihuncds  of  New-York,  from  1623  to  181:6,  p.  8, 
9,  6 ;  2  O'Callaghan' s  History  of  New-Netherlands,  24  to  31 ; 
Albany  Records,  20  to  61.) 

On  the  establishment  of  the  Court  of  Burgomasters  and 
Schepens  in  1653,  jurisdiction  of  all  such  matters  was  traus- 
ferred  to  it,  with  a  right  of  appeal  to  the  Governor  and  Council. 
Before  this  Court  wills  were  admitted  to  probate,  letters  of 
administration  granted,  curators  appointed  to  take  charge  of 
the  estates  of  widows  and  orphans,  executors  and  administra- 
tors were  compelled  to  account,  and  distribution  was  decreed. 


10 


As  these  duties,  however,  interfered  very  much  with  the  ordi- 
nary business  of  the  Court,  a  Court  of  Orphan  Masters  was 
established  in  1665,  which  had  the  power  to  grant  letters  of 
administration,  to  appoint  guardians,  and  to  regulate  estates 
in  all  cases  where  it  was  not  specifically  excluded  from  so 
doing  by  the  words  of  the  testator's  will.  {Records  of  the  Court 
of  Burgomasters  and  Schepens^  vol.  1  to  6.  Lacliaire  and  Van 
Veen's  Manuscript  JVotarial  Registers  or  Protocols  in  Neiu-  York ; 
Common  Council  Records ;  Bakfs  Judicml  Tribunals^  17,  18  ; 
Streets  Council  of  Revision  of  the  State  of  New-  Yorh,  p.  20.) 

After  the  conquest  of  the  province  by  the  English  in  166i, 
the  Court  of  Burgomasters  and  Schepens  was  changed  into 
the  Mayor's  Court,  a  name  by  which  it  was  known  for  one 
hundred  and  forty-six  years  afterwards,  until  the  present 
name  was  given,  of  the  Court  of  Common  Pleas.  For  some 
years,  under  the  English  rule,  it  continued  to  exercise  the 
same  functions  as  before,  and  its  proceedings  were  conducted 
in  the  English  and  Dutch  languages.  The  Court  of  Orphan 
Masters  was  discontinued,  and  the  Mayor's  Court,  long  after 
its  proceedings  were  conducted  entirely  in  English,  exercised 
the  same  jurisdiction  in  respect  to  testamentary  matters  and 
intestate  estates  of  persons  dying  within  the  city,  as  it  or  the 
Court  of  Orphan  Masters  had  exercised  previously,  with  some 
modifications  and  restrictions.  {Records  of  Mayor'' s  Court;  Re- 
cords of  Wills  in  New-  Yorh  Common  Pleas  Court^  vol.  1  and  2 ; 
Daly's  Judicial  Tribunals  of  New-  York,  25,  26.) 

When  the  government  of  the  province  was  committed  to  Gov- 
ernor Nicoll,  by  James  II.,  then  Duke  of  York,  a  body  of  laws 
was  framed  for  its  government,  afterwards  known  as  "The 
Duke's  Laws  " ;  and  this  code,  with  such  additions  as  were  made 
to  it  by  the  Governor  and  Council,  or  at  the  annual  sitting  of 
the  Court  of  Assize,  the  written  instructions  received  by  the 
Governors  from  the  Home  Government,  the  principles  of  the 


11 

common  law,  together  with  certain  usages  and  customs  which 
had  been  derived  from  the  Dutch, — constituted  the  law  of  the 
province,  until  the  sitting  of  the  first  Legislative  Assembly, 
in  1683. 

By  the  Duke's  Laws,  a  constable  and  two  overseers  were 
required  to  proceed  to  the  house  of  a  deceased  person,  forty- 
eight  days  after  the  death,  and  inquire  respecting  his  estate, 
and  whether  he  had  left  any  will.  They  were  required,  fur- 
ther, to  make  an  inventory  of  his  effects,  appraise  the  value, 
and  make  a  return  of  their  proceedings,  under  oath,  to  the 
next  Court  of  Sessions. 

The  province  was  divided  into  three  ridings,  in  each  of 
which  was  a  Court  of  Sessions,  composed  of  the  justices  of 
peace  living  within  the  riding,  which  was  held  twice  a  year. 
The  probate  of  wills,  the  granting  of  administration  in  cases 
of  intestacy,  the  final  accounting  of  executors  and  administra- 
tors, together  with  such  compulsory  measures  as  were  neces- 
sary to  compel  it,  the  removal  of  executors,  the  distribution 
of  estates,  and' the  appointment  of  guardians,  took  place  in 
the  first  instance  before  the  Court  of  Sessions,  except  in  the 
city  of  New- York,  where  the  same  jurisdiction  was  exercised 
by  the  Mayor's  Court.  If  the  estate,  however,  exceeded  the 
value  of  £100,  all  proceedings  upon  the  probate  of  wills  and 
all  records  in  case  of  administration  had  to  be  transmitted, 
duly  certified,  to  the  ofiice  of  the  Secretary  of  the  Province  in 
the  city  of  New-York,  where  they  were  required  to  be 
recorded,  and  where  letters  testamentary  and  of  administration 
in  such  cases,  and  the  final  discharge  of  executors  or  adminis- 
trators, which  was  called  a  quielas,  were  granted  by  the  Gov- 
ernor under  the  seal  of  the  province.  The  proof  and  all 
proceedings  took  place,  in  the  first  instance,  before  the  Court 
of  Sessions  or  the  Mayor's  Court,  and  the  Court  gave  its  judg-  ^ 
ment  or  opinion,  which  was  transmitted  to  the  Governor 
under  the  certificate  of  one  of  the  Justices  and  of  the  Clerk, 


12 


and  the  act  of  the  Governor  was  simply  a  formal  ratification 
by  the  granting  of  letters  or  of  discharges.  In  some  instances 
the  Governor  gave  his  judgment  upon  the  construction  of  a 
will,  and  Governor  Andros  granted  letters  without  any  pro- 
ceeding in  Court,  but  these  were  exceptional  instances  and  of 
rare  occurrence.  In  all  proceedings  before  them,  the  Court  of 
Sessions  had  the  power  of  grantitig  a  rehearing,  or,  as  it  was 
called,  a  ''review,"  and  upon  such  review  might  in  their  dis- 
cretion admit  new  evidence — a  power,  however,  which  was  not 
continued  in  the  courts  which  succeeded  in  1691  to  the  civil 
jurisdiction  of  these  tribunals.  {The  Duke^s  Laws  ;  Collection 
of  the  New-  Yorh  Historical  Society^  vol.  1,  pp.  815,  404,  412, 
415;  Records  of  Wills  in  New-Yorh  Surrogates  Office^  Lib.  I, 
pp.  1,  3,  10,  19,  21,  31,  28,  38,  41,  67,  90,  91,  105,  190,  195, 
270,  283,  855,  876,  877,  442;  Lib.  II.,  29  ;  Lib.  IIL,  191;  Lib. 
lY.,  129  ;  Booh  of  Inventories^  vol.  I.,  1,  5  ;  Dalfs  Judicial  Tri- 
hunals^  23  to  30 ;  2  Revised  Laws  of  1813  ;  Appendix  No.  Y.) 

This  state  of  things  continued  unfil  1686.  In  the  letter  of 
instructions  transmitted  in  that  year  to  Governor  Dongan,  he 
was  among  other  things  directed  to  see  that  the  ecclesiastical 
jurisdiction  of  the  Archbishop  of  Canterbury  should  take  place 
in  the  province,  as  farr  as  conveniently  may  bee,"  except  the 
collating  of  benefices,  the  granting  of  marriage  licenses,  and 
the  probate  of  wills,  which  were  reserved  to  the  Governor ; 
and  in  a  similar  letter  of  instructions  to  Sloughter  in  1689, 
the  ecclesiastical  jurisdiction  of  the  Bishop  of  London  was 
added.  (3  Col  Doc.  372,  688,  820.)  The  ecclesiastical  juris- 
diction of  the  Bishop  of  London,  so  far  as  it  related  to  testa- 
mentary matters  or  the  administration  of  the  estates  of  intes- 
tates, was  limited  to  cases  where  the  effects  of  the  deceased 
were  exclusively  within  the  Bishop's  diocese,  and  the  juris- 
*  diction  was  exercised  by  a  court  held  in  the  diocese  by  the 
Bishop's  Commissary,  or  Surrogate ;  but  if  the  deceased  had 
left  effects  in  more  than  one  diocese,  then  the  Archbishop  of 


13 


Canterbury  had  exclusive  jurisdiction,  and  the  matter  was 
heard  before  his  delegate  in  the  Prerogative  Courts,  of  which 
there  were  two,  the  prerogative  offices  at  York  and  Canter- 
bury. {Ayliffcs  Parereg on  Juris  Canonici  Aiiglicana,  192,  534, 
London,  1726;  Gzhson  Codex,  465,  471,  472,  478  ;  GodolpMn's 
Orphans^  Legacy^  106 ;  4  Inst,  835  ;  Williams  on  Executors,  248, 
4th  Lond.  Ed.) 

After  these  instructions  were  received,  a  change  took  place 
in  the  course  of  procedure ;  the  Courts  of  Sessions  and  the 
Mayor's  Court  continued  to  exercise  the  same  functions  as 
before,  but  the  Governor  or  the  Secretary  of  the  province  also 
took  proof  of  the  execution  of  wills  and  of  the  inventory  and 
appraisement  of  estates;  and  in  1691,  under  the  administra- 
tion of  Lieutenant-Governor  Ingoldsby,  a  clause  was  inserted 
in  all  letters  testamentary  or  of  administration,  that  the  grant- 
ing of  such  letters,  the  hearing  of  accounts,  the  reckoning  of 
administration  and  the  granting  of  the  final  discharge,  belong- 
ed to  the  Governor,  and  not  to  any  inferior  Judge,  If  a  will 
was  proved  befofe  the  Secretary,  he  annexed  a  certificate  that 
"being  thereunto  delegated,"  the  will  had  been  duly  proved 
before  him,  and  an  authentication,  in  the  name  of  the  Gover- 
nor, in  the  form  that  continued  in  use  down  to  the  Revised 
Statutes,  that  the  will  had  been  "  proved,  approved,  and 
allowed "  under  the  prerogative  seal,  was  annexed,  and  the 
whole  was  recorded  in  the  Secretary's  office  —  the  validity  of 
the  record  being  attested  by  the  Secretary's  signature.  In  this 
way  a- distinct  department  grew  up  in  the  Secretary's  office, 
which  took  the  name  of  the  Prerop^ative  Office,  and  the  records 
connected  with  it  the  name  of  the  Registry  of  the  Prerogative, 
and  by  1691  the  whole  became  distinguished  by  the  judicial 
appellation  of  the  Prerogative  Court.  {Register  of  Wills  in 
New -York  Surrogate's  Office  from  1683  to  1690  and  1691, 
pages  182,  229.)  The  Legislative  Assembly  which  was  con- 
vened in  16S3,  having  been  abolished,  was  again  re-instated  in 


14 


1691,  and  at  its  second  session,  in  1692,  an  act  was  passed 
{Laws  of  ISfew-York  from  1691  to  1751,  vol.  1,  p.  15  —  Smith 
k  Livingston's  ed.)  by  which  it  was  declared  that  the  probate 
of  all  wills  and  letters  of  administration  should  thenceforth 
be  granted  by  the  Governor,  or  such  person  as  be  should  del- 
egate, under  the  seal  of  the  Prerogative  Office ;  that  all  wills 
in  the  counties  of  Orange,  Eichmond,  Westchester,  or  Kings 
should  be  proved  in  New-York,  before  the  Governor,  or  his 
delegate,  and  in  the  remoter  counties  in  the  Courts  of  Com- 
mon Pleas  —  tribunals  which  had  been  created  in  each  county 
by  an  act  of  the  previous  session ;  and  where  the  proof  was 
taken  in  the  Courts  of  Common  Pleas  it  was  required  to  be 
certified,  under  the  hand  of  the  Judge  and  Clerk,  to  the  Secre- 
tary's office  in  New- York,  where  probate  was  granted.  Where 
the  estate  was  under  £50,  the  Courts  of  Common  Pleas  ^vere 
authorized  to  admit  the  will  to  probate,  or  to  grant  letters  of 
administration  ;  and  from  their  decision  an  appeal  was  allowed 
to  the  Governor,  or  to  the  person  he  might  delegate  to  act  for 
liim.   How  this  jurisdiction  was  then  understood,  appears  from 
a  letter  written  the  year  following,  by  Clarkson,  the  Secretary 
of  the  Province,  to  the  Lords  of  Trade,  {Col  Doc.  lY.,  28.) 
"  The  Governor,"  he  says,  "  discharges  the  place  of  the  ordi- 
nary, (the  Bishop,)  in  granting  administration  and  in  proving 
wills,  and  the  Secretary  of  the  Province  acts  as  EegistrarJ' 
The  Secretary  of  the  Province  was  an  officer  independent  of 
the  Governor,  holding  his  appointment  from  the  Crown,  the 
duties  of  which  he  discharged  chiefly  through  a  deputy.  Gov- 
ernor Fletcher,  immediately  after  the  passage  of  this  act,  in 
1692,  appointed  this  deputy  his  delegate,  and  he  took  proof  of 
wills,  which  were  afterwards  approved  and  allowed  in  the 
name  of  the  Governor.    In  1702  Lord  Cornbury  appointed  as 
his  delegate  a  Dr.  Bridges,  who  was  afterwards  Chief  Justice 
of  the  Province.    The  proof  of  wills  was  then  taken  before 
him,  and  upon  his  certificate  letters  were  granted  by  the  Depu- 


15 


ty  Secretary,  in  the  name  of  the  Governor.  Before  Dr. 
Bridges  executors  and  administrators  were  sworn  faithfully  to 
execute  their  trust ;  the  renunciation  of  executors  was  formal- 
ly made  before  him ;  he  took  proof  of  inventories ;  and  this 
gentleman,  who  was  a  man  of  legal  acquirements,  and  had 
received  in  England  the  degree  of  Doctor  of  Laws,  was  the 
first  in  the  Province  to  make  use  of  the  title  of  Surrogate. 
{Records  of  Wills  in  New  -  York  Surrogate's  Office^  YIL,  3,  6i,  87, 
93, 129,  169,  212.)  Dr.  Bridges  having  been  appointed  Chief 
Justice,  Corubury  appointed  the  Deputy  Secretary  his  dele- 
gate ;  and  this  ofiicer,  with  the  exception  of  a  few  interrup- 
tions and  changes,  continued  to  act  as  the  Governor's  delegate 
down  to  the  time  of  the  Kevolution. 

The  provision  in  the  Act  of  1692,  which  required  all  wills 
in  the  counties  named  to  be  proved  in  New- York,  before  the 
Governor  or  his  delegate,  was  found  to  be  exceedingly  on- 
erous. Traveling  then  was  very  different  from  what  it  is  now, 
and  to  bring  witnesses  in  all  such  cases  to  New- York  was 
attended  with  difl&culty  and  expense.  In  view  of  this  incon- 
venience, Cornbury,  acting  upon  the  previous  precedent  of 
Ingoldsby,  and  giving  what  was  perhaps  an  allowable  con- 
struction to  the  Act  of  1692,  commissioned  delegates  to  act  for 
him  in  all  of  these  counties ;  and  at  a  later  period,  under 
subsequent  Governors,  delegates  were  appointed  for  the  more 
remote  counties.  (JRecords  of  Wills  in  Kew  -  York  Surrogates 
Office,  VII.,  212,  476,  489 ;  YIL,  19,  18 ;  XII.,  187,  199  ;  XIII., 
891 ;  Book  of  Commissions,  III,  473 ;  Y.,  235,  418,  412,  420 ; 
YL,  4.)  At  the  same  time  a  local  delegate  was  appointed  for 
the  city  and  county  of  Xew-York,  distinct  from  the  Secretarj^ 
of  the  Province  or  Deputy  Secretary,  who  was  also  commis- 
sioned to  act  as  delegate.  In  fact,  an  attempt  was  made  to  carry 
out,  in  conformity  with  the  instructions  that  accompanied  the 
Governor's  commission,  the  distinct  jurisdictions  exercised  in 
England  by  the  Commissary  of  the  Bishop  Diocesan,  and  the 


16 


ordinary  or  delegate  of  the  Archbishop  of  Canterbury,  or  what 
was  then  known  as  the  Court  held  by  the  Commissary  of  the 
Bishop,  and  the  Prerogative  Court  held  by  the  delegate  of  the 
Archbishop  or  Metropolitan.  {Gibson's  Codex,  465,  1035.)  If 
the  deceased  had,  at  the  time  of  his  death,  effects  in  more  than 
one  county,  or  as  the  ofi&cial  document  expressed  it,  "goods, 
chattels  and  credits  in  divers  places  within  the  Province,"  then 
the  Governor  exercised  exclusive  jurisdiction.  The  will  was 
proved  before  his  delegate,  in  the  Prerogative  Court.  Letters 
were  issued  in  the  name  of  the  Governor,  under  the  Preroga- 
tive seal,  attested  by  the  signature  of  the  Secretary  or  the 
Deputy  Secretary,  and  the  whole  was  recorded  in  the  Eegistry 
of  the  Prerogative  Court.  If  the  deceased,  however,  had 
effects  only  in  one  county,  then  the  will  was  proved  before 
the  local  delegate  of  that  county.  He  gave  a  certificate  of  the 
fact,  and  the  will  was  then  taken  to  the  Prerogative  Courts 
where  it  was  approved  and  allowed,  letters  testamentary  were 
granted  in  the  name  of  the  Governor,  the  seal  of  the  Preroga- 
tive was  affixed,  and  the  whole  was  recorded  in  the  Eegistry 
of  the  Court. 

Letters  of  administration  could  be  obtained  only  in  the 
Prerogative  Court.  By  the  Act  of  the  22,  23,  Car.  IL,  (Cap. 
10,)  administrators  were  required  to  exhibit  under  oath  an 
inventory  of  the  personal  estate  of  the  deceased,  in  the  regis- 
try of  the  Court  that  granted  letters  ;  to  make  a  true  and  just 
account,  also  under  oath,  to  the  Court  of  their  administration, 
by  the  day  fixed  in  their  bond,  which  was  not  less  than  a  year; 
their  accounts  v/ere  to  be  examined  and  allowed  in  that  Court, 
and  they  bound  themselves  to  pay  all  proceeds  to  such  persons 
as  the  Judge  of  that  Court  should  limit  or  appoint.  This  juris- 
diction in  the  Colony  was  vested  in  the  Prerogative  Court,  ex- 
ecutors and  administrators  accounted  before  it,  and  the  decree 
upon  final  distributions  was  made  there.  It  had  the  power  to 
issue  citations  to  compel  the  attendance  of  witnesses,  and  it 


17 


heard  appeals,  where  probate  or  administration  was  granted 
by  the  Court  of  Common  Pleas  ;  in  addition  to  which  it  exer- 
cised a  jurisdiction  more  especially  ecclesiastical,  such  as  the 
granting  of  marriage-licenses,  licenses  to  schoolmasters,  and  in 
taking  proof  of  the  due  installation  of  clergymen.  {Records 
of  ^yills  in  New-Yorh  Surrogate's  Office,  IL,  39,  104,  107  ;  III., 
149 ;  lY.,  129, 182,  213,  221,  230,  250,  328 ;  Y.,  256,  333 ;  YI., 
1 ;  YIL,  474,  484,  491 ;  YIIL,  18, 19 ;  XIL,  187,  199  ;  XIIL, 
891 ;  XXYIII.,  106 ;  Booh  of  Inventories,  I.,  5  ;  Record  of  Admin- 
istrations, I.,  p.  2  ;  iV:  r:  Col.  Doc.  YIL,  830;  YIIL,  322,  413  ;' 
New-Yorh  Records  of  Marriages,  Albany,  1860  ;  MaunseWs  An- 
nah  of  Albany,  vol.  3,  327,  vol.  4,  16.) 

The  delegate  who  represented  the  Governor  in  this  Court,  or 
as  he  might  be  called,  the  general  delegate,  was  either  the 
Secretary  of  the  Province  or  the  Deputy  Secretary,  generally 
the  latter.  He  was  empowered  by  his  commission  to  admit 
wills  to  probate,  to  grant  letters  of  administration,  and  for  that 
purpose  might  "affix  the  prerogative  seal  of  the  Province 
thereto,  without  any  further  fiat  or  allowance."  {Booh  of 
Commissions,  v.  62.) 

No  such  general  powers  were  conferred  on  the  local  dele- 
gates. They  were  authorized  by  their  commissions  to  take 
proof  of  the  execution  of  any  will  made  by  a  person  residing 
in  their  county,  to  swear  executors  or  administrators  that  they 
would  faithfully  execute  their  trust,  or  that  the  inventories  or 
accounts  to  be  exhibited  by  them  in  the  Prerogative  Court 
were  true,  and  to  supervise  the  estates  of  intestates.  This 
power  of  supervising  the  estates  of  intestates  was,  in  conse- 
quence of  a  clause  in  the  Act  of  1692,  which  provided  that 
where  any  person  died  intestate,  two  freeholders  of  the  town, 
to  be  annually  elected,  should  inquire  into  the  real  and 
personal  estate  of  the  deceased,  and  make  an  inventory  of  it, 
and  return  it,  under  oath,  to  the  person  in  the  county  dele- 
gated by  the  Governor  to  supervise  the  estates  of  intestates ; 


18 


that  the  persons  delegated  should  cause  the  goods  and  chattels 
to  be  sold,  retaining  the  proceeds  for  those  who  should  appear 
and  have  a  right  to  claim  them  ;  and  that  if  the  deceased  left 
orphans,  and  there  was  no  widow  or  next  of  kin,  that  the  per- 
son so  delegated  by  the  Governor  should  have  the  administra- 
tion and  care  of  the  intestate  and  the  guardianship  of  the  per- 
sons and  estates  of  the  orphans,  until  they  married  or  reached 
the  age  of  twenty-one, — a  provision  that  was  superseded  and 
became  inoperative  by  subsequent  legislative  enactments  (Booh 
of  Commissions^  III.,  473.)  With  the  exception  of  this  pro- 
vision, the  powers  of  these  legal  delegates  were  not  mucli 
greater,  in  fact,  than  that  of  Commissioners  of  Deeds  in  our 
day.  They  did  little  else  except  to  administer  formal  oaths,  for 
if  any  contest  arose  upon  the  execution  of  a  will,  it  was  settled 
in  the  Prerogative  Court,  from  which  alone  letters  could  issue. 
At  first,^  these  local  delegates  bore  only  the  name  of  delegates, 
but  about  1746  they  began  to  assume  the  title  of  Surrogates, 
and  were  thereafter  designated  by  that  title  in  their  commissions. 
There  was  thus,  as  in  England,  a  local  and  a  general  tribunal, 
with  the  distinction^  however,  that  the  local  tribunal  here 
was  much  more  limited  in  its  powers,  and  further,  by  the  fact 
that  its  judicial  acts,  such  as  taking  the  proof  of  wills,  had  to  be 
approved  and  ratified  under  the  seal  of  the  Prerogative  Court. 

In  1743*.  an  act  was  passed  for  the  more  speedy  recovery  of 
legacies.  By  this  act  any  person  entitled  to  a  legacy  or  a  resi- 
duary estate  under  a  will,  or  to  any  share  in  the  estate  of  an 
intestate,  might  bring  an  action  against  the  executor  or  ad- 
ministrator after  it  became  due,  or  if  no  time  was  fixed  by  the 
will,  after  a  year  had  expired,  to  compel  its  payment  in  the 
Supreme  Court  or  any  Court  of  Eecord,  if  it  amounted  to  more 
than  £20,  or  if  under  that  sum  in  a  Court  of  Commo-n  Pleas ; 
and  if  a  plea  of  want  of  assets  was  put  in,  the  Court  was  em- 
powered to  appoint  auditors  to  examine  the  accounts  of  the 
executor  or  administrator,  who  were  to  report  how  the  account 


19 


stood,  and  what  sum  would  remain  after  the  payment  of  debts, 
and  what  proportion  the  plaintilf  was  entitled  to.  The  Court 
was  empowered  to  correct  any  mistakes  or  errors  in  the  ac 
counts  reported,  and  for  the  amount  found  to  be  due  the  plain- 
tiff had  execution,  which  act  continued  in  force  down  to  the 
Kevised  Statutes.  {Laws  of  New -York,  vol.  1,  p.  316;  Smith 
&  Livingston's  edition,  and  Street'' s  JSfew  -  York  Council  of  Re- 
vision^ 281.)  This  act  and  the  general  jurisdiction  exercised 
by  the  Court  of  Chancery  in  such  cases,  furnished  a  much 
more  effectual  remedy  than  the  Prerogative  Court  could  afford  ; 
and  the  practice  of  accounting  in  that  Court  therefore  fell  into 
disuse,  except  when  an  executor  or  administrator  filed  his  ac- 
count with  the  view  of  obtaining  his  discharge;  and  in  time 
the  Common  Law  Courts  were  but'  rarely  resorted  to,  as  the 
remedy  in  equity  was  more  effi.cient  and  better  adapted  for  ad- 
justing the  rights  of  all  parties. 

I  have  thus  given,  as  far  as  it  is  now  possible  to  ascertain  it, 
the  exact  juriscjiction  exercised  by  the  Prerogative  Court.  No 
minutes  of  the  sittings  of  the  Court,  if  any  were  ever  kept,  or 
if  it  ever  had  any  regular  sittings,  which  I  very  much  doubt, 
are  to  be  found.* 

In  fact,  its  whole  business  was  managed  for  seventy  years 
before  the  Kevolution  by  the  Secretary  of  the  Province  and 

*  The  records  belonging  to  it,  and  every  tbing  appertaining  to  wills  and  the 
administration  of  estates,  were  carried  to  Albany  during  the  Revolution,  before  tbe 
evacuation  of  the  city  by  the  American  troops.  An  Act  was  passed  in  IT 99  (2 
Greenleaf,  Law  of  N.  F.,  420,)  directing  the  Judge  of  the  Court  of  Probate  to 
deliver  to  the  Surrogate  of  the  City  and  County  of  New- York  all  bocks,  records, 
minuies,  documents,  and  papers  belonging  to  the  Court  of  Probate  before  1st  of 
May,  1787,  in  pursuance  of  which  the  late  Sylvanus  Miller,  who  was  then  Surro- 
gate, went  to  Albany  in  1800,  and  brought  away  every  thing  that  could  then  bo 
found.  I  presume  that  if  any  minutes  had  ever  been  kept  of  the  Court,  they 
would  have  existed  then,  and  would  have  been  discovered  by  Judge  Miller, 
as  the  chain  of  records  which  he  brought  here  and  arranged  and  classified  are,  for 
tbe  whole  colonial  period,  very  complete  and  perfect. 


20 


his  Deputy,  with  little  interference  from  the  Governor,  and 
with  but  little  knowledge  on  his  part  respecting  it.  In 
connection  with  the  Registry,  which  the  Secretary  claimed 
as  a  part  of  his  office,  every  thing  was  done  to  keep  the 
Court  exclusively  under  the  control  of  this  officer.    It  was 
entirely  managed  by  his  Deputy,  who  fulfilled  many  func- 
tions, which  were  so  mixed  up  as  the  acts  of  one  and  the 
same  person  that  it  was  difficult  even  then  to  distinguish  the 
different  capacities  in  which  he  acted.    The  precise  character 
of  his  powers  or  those  of  the  Secretary,  together  with  the  ex- 
tent or  nature  of  the  authority,  which,  in  virtue  of  the  Gover- 
nor''s  prerogative,  was  vested  in  the  Prerogative  Court,  were 
matters  of  great  perplexity  then,  and  a  constant  subject  of 
complaint  and  remonstrance.    (See  Gov.  Moore^s  Letter  to  the 
Lords  of  Trade,  and  Gov.  Tryonh  upon  the  same  subject.  Col- 
Doc.  VII.,  130,  187,  283,  323.)    One  of  the  last  of  the  Secre- 
taries, Clark,  held  no  less  than  twelve  distinct  offices,  nearly  all 
•of  them  connected  with  the  administration  of  justice;  and  his 
Deputy,  Goldsbrow  Banyan,  who  held  that  office,  with  but  few 
interruptions,  from  1716  to  the  Revolution,  in  addition  to  act- 
ing as  the  general  assistant  of  his  principal,  was  examiner 
of  the  Prerogative  Court,  and  the  local  delegate  for  the  city 
and  county  of  ]^ew-York,  while  at  the  same  time  he  fulfilled 
the  function  of  general  delegate,  or,  as  Gov.  Tyron  describes 
the  office,  acted  as  principal  Surrogate.  A  course  of  manage- 
ment which  was  designed  to  baffle  all  inquiry  then,  and  which 
succeeded  in  doing  so,  (see  Iiejwrt  of  the  Lords  of  Trade, 
^Y.  Y.  Col.  Doc.  YIIL,413,)  was  not  very  easy  to  unravel  after- 
wards ;  and  therefore  when  the  Revolution  broke  out,  very  con- 
fused ideas  prevailed  as  to  the  nature  of  the  jurisdiction  of  this 
Court,  and  even  as  to  its  name — it  being  sometimes  called  the 
Prerogative  Court,  and  sometimes  the  Court  of  Probate,  a  con- 
fusion of  names  which  led  to  the  impression  that  these  were 
two  tribunals  known  by  these  names  before  the  Revolution,  an 


21 


impression  which . I  formerly  entertained  {Dahjs  Jvdicial  Tri- 
hunals  of  JSr.  Y.,  p.  53;  Bee.  of  Com.,\.,  70,412,  418;  VL, 
201.) — whereas  there  was  in  reality  but  one.  The  Legislature 
in  1778  meant  to  sweep  away  every  authority  vested  in  this 
Court,  in  virtue  of  the  Prerogative  of  the  Colonial  Governors, 
supposing  it  to  be  greater  than  it  actually  was,  and  to  consti- 
tute in  its  place  a  Court  thereafter,  to  be  held  by  a  single  judge, 
having  the  same  jurisdiction  in  testamentary  matters,  and  in 
cases  of  intestacy,  to  be  known  as  the  Court  of  Probates  ;  and 
accordingly  in  an  act  passed  in  that  year  it  was  declared  that 
the  Judge  of  the  Court  of  Probate  should  be  vested  with  the 
powers  and  authority,  and  have  the  like  jurisdiction  in  testa- 
mentary matters  which  the  Governor  of  the  Colony  of  New- 
York,  while  it  was  subject  to  the  crown  of  Great  Britain,  had 
and  exercised  as  Judge  of  the  Prerogative  Court,  or  the  Court 
of  Probates  of  the  Colony,  except  the  power  of  appointing  Sur- 
rogates.   (1  Laivs  of  jSfeiV'Yorh,  23,  Jones  &  Yarick  edition.) 

From  this  period  to  1789,  this  new  tribunal,  the  Court  of 
Probates,  continued  to  exercise  the  same  jurisdiction  in  such 
matters  as  the  Prerogative  Court  had  formerly  done.  The 
proofs  of  wills,  where  the  deceased  had  effects  in  more  than  one 
county,  were  taken  before  the  Judge  of  that  Court,  and  before 
the  Surrogate,  where  the  effects  were  exclusively  in  one  county ; 
and  in  both  cases  the  proof  of  the  will  was  "approved  and 
allowed,"  in  the  name  of  the  people,  before  the  Court  of  Pro- 
bates where  it  was  recorded,  and  from  which  letters  issued  under 
the  seal  of  the  Court,  attested  by  the  signature  of  its  Clerk.  Let- 
ters of  administration  were  also  granted  there,  and  all  inven- 
tories" were  filed  there ;  and  from  its  decisions  an  appeal  lay  to 
the  Court  of  Errors.  This  Court  held  stated  sittings,  at  regu- 
lar periods,  in  different  parts  of  the  State,  until  1783,  when  it 
was  fixed  in  the  city  of  New  York  until  1787,  after  which  it 
was  permanently  removed  to  Albany ;  and  up  to  1797  the  Sur- 
rogates of  the  different  counties  continued  to  exercise  exactly 


22 


the  same  powers  whicli  tliej  did  before  the  Revolution.  {Records 
of  Wills  in  N.  F.  Surrogate's  Office,  XXXIL,  50,  360 ;  XXXIII., 
2, 19,  59,  316, 421, 438 ;  XXXIV.,  436  ;  XXXY.,  290,  XXXVL, 
2  ;  XXXYII.,  316,  427  ;  XXXIX.,  286,  436 ;  1  Records  of  In- 
ventories,  1 ;  Records  of  Administrations,  vol.  4,  5,  6,  7.) 

In  that  year,  1787,  an  important  change  was  made  ;  an  act 
was  passed,  (2  Laws  of  New  -  York,  Jones  &  Yarick's  Ed.  71,) 
by  which  the  granting  of  probate  and  of  letters  of  administra- 
tion was  taken  away  altogether  from  the  Court  of  Probates, 
except  in  certain  specified  cases,  and  conferred  upon  the  Surro- 
gates of  the  different  counties,  from  whose  decision,  in  contest- 
ed cases,  an  appeal  was  allowed  to  the  Court  of  Probates.  This 
act  provided  that  the  Governor,  with  the  consent  of  the  coun- 
cil of  appointment,  should  commission  a  Surrogate  for  every 
county  in  the  State,  and  empowered  each  Surrogate  to  take 
proof  of  the  last  wills  and  testaments  of  persons  dying  in  his 
county,  or  who  were  inhabitants  of  it  if  they  died  from  home, 
to  issue  probate  and  grant  letters  testamentary  thereon,  or  let- 
ters of  administration  with  the  will  annexed ;  or,  where  such 
persons  died  intestate,  to  grant  letters  of  administration — such 
letters  to  issue  in  the  name  of  the  people,  and  to  be  tested  in 
the  name  of  the  Surrogate,  and  sealed  with  the  seal  of  his  office. 
This  act  further  provided  that  each  Surrogate  should  record  all 
wills  proved  before  him,  with  the  proof  thereof,  and  all  letters 
testamentary  or  of  administration  issued  by  him,  with  all  things 
concerning  the  same,  and  directed  that  when  administration 
was  granted  by  him,  that  the  inventory  should  be  "  exhibited  " 
in  his  office. 

Where  persons  died  out  of  the  State,  or  within  it,  who  were 
not  inhabitants,  the  act  directed  that  their  wills  should  be  proved 
before,  or  administration  of  their  personal  estates  should  be 
granted  by,  the  Judge  of  the  Court  of  Probate ;  and  in  such 
cases,  the  inventory  was  "  exhibited  "  into  the  registry  of  that 
Court.    This  act  also  gave  the  Court  of  Probates  authority  to 


23 


compel  administrators  to  account  in  cases  of  intestacy,  to  de- 
cree and  settle  the  order  of  distribution,  after  the  payment  of 
debts  and  expenses,  and  to  compel  the  payment  of  the  amounts 
so  decreed.  It  was  empowered,  also,  to  hear  and  determine  all 
causes  touching  any  legacy  or  bequest  in  any  last  will  and  testa- 
ment, payable  out  of  the  personal  estate  of  the  testator,  and  to 
compel  payment  of  it.  This  was  a  provision  virtually  empow- 
ering the  Court  to  call  executors  to  account,  which  was  an  im- 
portant change,  as,  before  that  time.  Probate  or  Ecclesiastical 
Courts  had  no  power  by  the  canon  law,  or  by  statute,  to  com- 
pel executors  to  account.  {Sparroio  v.  Norfolk^  Noy's  E.  28  ; 
Gihsonh  Codex^  466,  478.)  Authority  was  also  given  to  the 
Court  to  enforce  its  decrees  for  the  payment  of  distributive 
shares,  or  bequests,  or  legacies,  by  execution  against  the  person; 
and  by  the  twentieth  section  of  the  act  it  was  declared  that 
"the  Courts  of  the  said  Surrogate  and  the  said  Court  of  Pro- 
bates, in  the  matters  submitted  to  their  cognizance,  respectively, 
by  this  act,  shall  proceed  according  to  the  course  of  the  Courts 
having,  by  the  (Common  law,  jurisdiction  of  like  matters.'' 

In  1786,  the  Court  of  Probates,  where  the  personal  estate 
was  insufficient  to  pay  debts,  was  empowered  to  order  the  sale 
of  the  real  estate,  and  make  distribution  of  the  proceeds  among 
the  creditors,  (1  Greenleafs  Laiis,  238 ;)  but  when  the  Court  was 
removed  permanently  to  Albany  in  1797,  (3  Greenleafs  391,)  it 
was  found  very  inconvenient  to  resort  thither  in  all  cases  for 
that  purpose;  and  accordingly,  in  1799,  {Laws  of  N.  Y.,  1799, 
Andrews's  ed.,  721,)  an  act  was  passed  conferring  this  power 
upon  the  Surrogates,  when  the  lands  of  the  deceased  were  ex- 
clusively in  one  county  ;  and  by  the  same  act  they  were  author- 
ized to  admit  wills  to  probate,  or  to  grant  letters  of  adminis- 
tration where  persons  died  out  of  the  State,  or  within  it,  who 
were  not  inhabitants. 

In  1801,  the  Surrogates  were  clothed  with  the  same  power  as 
the  Judge  of  Probate  to  cite  administrators  to  account,  to  de- 


24 


cree  distribution,  or  the  payment  of  bequests  and  legacies,  and 
compel  it  by  execution,  (1  W€bsier''s  Laws,  817,  825  ;  Seymour 
V.  Seymour,  4  John.  C,  R.  410  ;  Foster  v.  Wilber,  1  Paige,  405 ; 
Daten  v.  Hudson,  6  Cow,  221.)  In  1802  they  were  authorized 
to  appoint  guardians  for  infants  as  fully  as  the  Chancellor 
might  do,  (3  Webster,  158 ;)  in  1806,  to  order  the  admea- 
surement of  dower  of  lands  within  their  county,  upon  the 
application  of  the  widow,  the  heirs,  or  the  guardians  of 
minors,  (3  Webster,  816;)  in  1807,  to  exercise  powers  as  ex- 
tensive as  the  Court  of  Probates  in  ordering  sale  of  lands  for 
the  payment  of  debts,  (5  Webster,  138 ;)  in  1810,  to  order  the 
mortgaging  or  leasing  of  the  land  of  testators  or  intestates  for 
the  payment  of  debts,  where  any  infants  were  interested  ;  and 
all  these  laws,  whether  relating  to  the  Surrogates  or  to  the 
Court  of  Probates,  were  incorporated  in  one  general  act  in  the 
revision  of  1813,  in  which  act  are  also  embraced  some  other 
general  powers,  such  as  compelling  the  production  of  wills, 
documents,  or  writings,  the  attendance  of  witnesses,  and* the 
power  of  punishing  for  contempts;  and  by  an  act  passed  in  the 
same  year,  they  were  authorized  to  complete  tlie  unfinished 
business  that  might  be  left  by  their  predecessors.  {Laivs  of 
1813,  p.  139.) 

In  1819,  they  were  empowered  to  confirm  sales  of  real  estate 
ordered  by  them  for  the  payment  of  debts,  and  to  direct  con- 
veyances to  be  made  hj  executors  or  administrators.  {Laivs  of 
1819,  p.  214.)  In  1821,  to  institute  an  inquiry  respecting  the 
personal  estate  of  intestates  not  delivered  to  the  public  admin- 
istrator, nor  accounted  for  in  a  lawful  and  satisfactory  manner, 
by  the  person  into  whose  hands  it  was  supposed  to  have  fallen. 

By  an  act  passed  in  1823,  the  Court  of  Probates  was  abol- 
ished. Its  appellate  jurisdiction  on  appeals  from  Surrogates 
was  transferred  to  the  Court  of  Chancery,  and  whatever  other 
jurisdiction  it  possessed  was  by  this  act  vested  in  that  Court 
{Laics  0/  1823,  p.  62.) 


25 


From  1823  to  the  passage  of  the  Eevised  Statutes  the  only 
acts  of  a  general  character  relating  to  Surrogates  were  acts 
directing  them  to  record  all  letters  testamentary  and  of  admin- 
istration, all  appointments  of  guardians,  and  all  orders  and 
decrees  upon  the  sales  of  real  estate  made  by  themselves  or 
their  predecessors.    (Laws  of  1828,  p.  133.) 

It  will  be  seen,  as  the  result  of  this  lengthened  examination, 
that  the  powers  conferred  upon  Surrogates  were  from  the  be- 
ginning carefully  enumerated  in  the  commissions  under  which 
they  were  first  appointed,  and  by  subsequent  legislative  acts  ; 
that  what  was  not  granted  to  them  was  vested  before  the  Kev- 
olution  either  in  the  Surrogate's  Court,  the  Supreme  Court,  the 
Court  of  Common  Pleas  and  the  Court  of  Chancery,  and 
afterwards  in  the  Court  of  Probates.  That  when  the  Prerog- 
ative Court  was  abolished  in  1778,  its  jurisdiction  in  testa- 
mentary matters  and  in  cases  of  intestacy  was  transferred  to 
the  Court  of  Probates,  and  that  when  that  Court  was  abol- 
ished in  1823,  ij:s  jurisdiction  was  vested  in  the  Court  of 
Chancery.  The  Supreme  Court  and  the  Courts  of  Common 
Pleas  had,  as  has  been  shown  under  the  provision  in  the  act 
of  1743,  the  power  of  compelling  executors  or  administrators 
to  account  in  actions  brought  to  recover  legacies  or  distribu- 
tive shares,  and  wills  of  real  estate  were  proved  in  the  Su- 
preme Court  or  the  Court  of  Common  Pleas  until  the  passage 
of  the  Eevised  Statutes.  This,  however,  was  a  mere  formal 
proceeding,  and  in  the  Supreme  Court  the  proof  in  the  shape 
of  affidavits  previously  prepared  out  of  court  was  made  pro 
forma  before  all  the  Judges  of  the  Court  sitting  in  l)anc. 

In  tracing  the  history  of  these  separate  jurisdictions,  I  re- 
gret to  have  had  occasion  to  go  into  such  minuteness  of  detail, 
but  it  was  absolutely  essential  that  the  exact  authority  which 
was  vested  in  each  tribunal  should  be  distinctly  shown  to  take 
away  any  foundation  for  those  "  serious  questions  "  of  which 
the  Revisors  were  so  needlessly  apprehensive. 


26 


I  have  pointed  out  all  the  powers  granted  to  Surrogates 
throughout  the  whole  course  of  our  Colonial  and  State  history 
down  to  the  passage  of  the  Revised  Statutes,  and  that  they 
may  be  taken  collectively,  I  will  recapitulate  them  : 

I.  To  take  proof  of  the  execution  of  last  wills  and  testa- 
ments, and  to  admit  them  to  probate. 

II.  To  grant  letters  testamentary  and  of  administration. 

III.  To  swear  executors  or  administrators  to  the  truth  of 
the  inventories  and  accounts  exhibited  by  them. 

lY.  To  call  administrators  to  account,  to  decree  the  just 
and  equal  order  of  distribution  after  the  payment  of  debts 
and  expenses,  to  compel  administrators  to  observe  and  pay 
the  same,  and  to  enforce  it  by  execution  against  the  person. 

Y.  To  hear  and  determine  any  cause  touching  a  legacy  or 
bequest  in  any  last  will  and  testament,  to  decree  the  payment 
of  a  legacy  or  bequest,  and  to  enforce  it  by  executioa  against 
the  person. 

YI.  To  order  the  admeasurement  of  dower  upon  the  applica- 
tion of  the  widow,  or  of  any  heir,  or  of  the  guardian  of  a  minor. 

YII.  To  order  the  sale  of  real  estate  for  the  payment  @f 
debts,  when  the  personal  estate  was  insufficient,  and  when  the 
real  estate  proved  insufficient  to  divide  the  proceeds  after  the 
payment  of  expenses  proportionally  among  the  creditors  ;  to 
confirm  all  such  sales  and  direct  conveyances  to  be  made  by 
executors  or  administrators,  and  to  order  the  mortgaging  or 
leasing  of  the  real  estate  of  any  testator  or  intestate  for  the 
same  purpose  when  infants  were  interested. 

IX.  To  appoint  guardians  for  infants  as  fully  as  the  Chan- 
cellor might  do. 

X.  To  record  all  wills  proved  before  them  with  the  proof 
thereof,  letters  testamentary  and  of  administration  granted  by 
them,  with  all  things  concerning  the  same,  all  orders  or  de- 
crees made  by  them  for  the  sale  of  real  estate,  and  all  instru- 
ments, writings  or  documents  of  a  like  nature  left  unrecorded 


27 


by  their  predecessors,  and  to  complete  the  unfinished  business 
of  their  predecessors. 

XL  To  institute  inquiry  respecting  the  personal  estates  of 
intestates  not  delivered  to  the  public  administrator  nor  ac- 
counted for  lawfully  by  persons  into  whose  hands  it  was  sup- 
posed to  have  fallen. 

XII.  Authority  to  compel  the  attendance  of  witnesses,  the 
production  of  wills,  documents  or  writings,  and  for  disobe- 
dience in  such  cases  the  power  to  commit  the  party  offending 
for  contempt. 

XIII.  And  lastly,  in  all  matters  submitted  to  their  cogni- 
zance they  were  authorized  to  proceed  according  to  the  course 
of  the  Courts,  having  by  the  common  law  jurisdiction  of 
such  matters,  except  so  far  as  they  were  restricted  by  statute, 
and  tbey  had  such  incidental  powers  as  were  necessary  to 
carry  those  which  were  granted  into  effect.  (See  Clowes  Com- 
mission^  Rec.  of  Coins.  III.,  473.) 

This  enumeraJ^on  embraces  all  that  was  ever  granted  to 
them  down  to  the  passage  of  the  Eevised  Statutes.  In  that 
revision  the  jurisdiction  of  the  Surrogates'  Courts  was  con- 
siderably enlarged,  but  nothing  was  taken  away.  By  the  6th 
subdivision  of  §  1,  title  1,  Chap.  2,  Part  III.,  of  the  Eevised 
Statutes,  they  were  "authorized  to  administer  justice  in  all 
matters  relating  to  the  affairs  of  deceased  persons  according 
to  the  provisions  of  the  Statutes  of  the  State."  Kow,  all  the 
powers  which  had  ever  been  conferred  upon  the  Surrogates  or 
Surrogates'  Courts,  from  the  earliest  colonial  period  down  to 
this  revision,  either  in  the  commissions  originally  granted  by 
the  Governors  or  in  the  Colonial  Statutes,  were  enumerated 
in  statutes  passed  under  the  State  Government,  from  the  Act 
of  the  20th  of  February,  1787,  to  the  Act  of  the  81st  of 
March,  1828.  There  was  but  one  not  expressly  named — that 
of  swearing  executors  and  administrators  to  the  truth  of  their 
inventories  or  accounts;  but  this  was  embraced  by  the  general 


28 


provision  in  the  Act  of  1787,  authorizing  the  Surrogates' 
Courts  to  proceed  in  the  matters  submitted  to  their  cognizance, 
according  to  the  course  of  the  Courts  having  by  the  common 
law  jurisdiction  in  like  matters,  which  Courts  always  had  the 
power  of  swearing  executors  or  administrators  to  the  correct- 
ness of  their  inventories  and  accounts.  {Consefs  Practice  of 
jSj)mtual  Courts,  11,  112,  Edition  of  1708.)  The  difficulty, 
however,  caused  by  the  Kevised  Statutes,  was  the  incorpora- 
tion of  the  clause  previously  referred  to,  declaring  that  no 
Surrogate  should,  under  pretext  of  incidental  power  or  con- 
structive authority,  exercise  any  jurisdiction  not  expressly 
given  by  some  statute  of  the  State ;  and  the  doubt  which  this 
provision  produced  was  whether  these  Courts  could  exercise 
even  those  incidental  powers,  such  as  adjourning  from  day  to 
day,  swearing  witnesses,  etc.,  which  were  necessary  to  carry 
those  which  were  granted  into  effect.  In  the  early  commissions 
to  the  Surrogates,  there  was  a  clause  expressly  reserving  to 
them  all  such  incidental  powers.  (See  Clowes  Commission,  Eec.  of 
Coms.,  III.,  p.  473.)  But  no  clause  of  a  like  nature  was  con- 
tained in  any  statute  passed  under  the  State  Government,  or 
during  the  Colonial  period  ;  and  the  question  that  was  raised 
under  this  very  stringent  provision  was  whether  such  incident- 
al powers  could  be  exercised,  as  they  were  not  "  expressly 
given  by  some  statute  of  the  State."  There  was,  in  reality,  no 
solid  ground  for  this  doubt,  as  they  had  never  been  taken 
away.  They  were,  in  my  judgment,  sufficiently  embraced  in 
the  general  provision  to  which  I  have  previously  referred  in 
the  Act  of  1787,  or,  if  they  were  not,  they  followed  as  inci- 
dental to  the  powers  granted.  If,  however,  there  was  any 
ground  for  the  belief  that  they  had  been  taken  away,  the 
repeal  of  this  provision  in  1837  restored  them  ;  but  it  restored 
nothing  else,  as  these  Courts  had,  by  the  clause  of  the  Revised 
Statutes  which  I  have  quoted,  every  other  power  which  they 
had  previously  possessed. 


29 

Having  arrived,  then,  at  a  clear  understanding  of  the  exact 
extent  of  the  authority  now  vested  by  law  in  the  Surrogates' 
Courts,  it  remains  to  inquire  how  far  the  authority  which 
has  been  conferred  upon  them  entitles  them  to  revoke,  alter 
or  change  their  final  acts  or  decrees.  The  only  direct  statutory 
provisions  of  the  kind  are  the  clauses  of  the  Eevised  Statutes, 
empowering  them  to  revoke  letters  of  administration,  or  of 
guardianship  in  the  cases  therein  specified,  or  to  revoke  the 
probate  of  a  will,  upon  a  re-hearing,  where  the  application 
is  made  by  next  of  kin,  within  a  year  after  the  probate  was 
granted,  {;6  Rev.  Siat.  142,  162,  163,  16-1,  5th  ed.)  Whatever 
other  power  they  possess  in  this  respect,  is  derived  from  the 
general  clause  in  the  Act  of  1787,  directing  the  Court  of 
Probates  and  the  Surrogates'  Courts  to  proceed  in  the  mat- 
ters submitted  to  their  cognizance,  according  to  the  course 
of  the  Courts  having  by  the  common  law  jurisdiction  of  like 
matters. 

It  has  already  been  seen  that  the  Surrogates'  Courts  were 
subordinate  to  the  Court  of  Probates,  and  that  the  jurisdiction 
of  that  tribunal  was  transferred  to  the  Court  of  Chancery, 
the  entire  jurisdiction  of  which  was  afterwards,  and  is  now, 
vested  in  the  Supreme  Court.  In  1787,  when  this  act  was 
passed,  the  Courts  which  then,  by  the  common  law,  had  juris- 
diction analagous  to  that  of  the  Surrogates'  Court  and  the 
Court  of  Probates  were  tribunals  in  England  known  by  the 
general  appellation  of  the  Ecclesiastical  or  Spiritual  Courts,  a 
jurisdiction  that  was  entirely  swept  away  in  1857,  upon  the 
creation  of  a  Greneral  Court  of  Probate  for  the  whole  kingdom. 
(20  and  21  of  Victoria,  cap.  77.)  They  were  all  of  them  infe- 
rior Courts  of  special  and  limited  jurisdiction,  (3  Black.  Com, 
67  ;  Tomlui's  Laia  Dictionary  Courts  ;  Paff  v.  Kinney,  1  Bradf. 
4,)  and  composed  a  very  numerous  family,  as  there  were,  at 
one  period,  in  England,  no  less  than  three  hundred  and  eighty 
various  probate  jurisdictions.    They  were,  nearly  all  of  them, 


80 


local  Courts,  known  by  various  names — Diocesan,  Peculiars, 
Royal  Peculiars,  Manorial,  Court  of  Hustings,  Orphans'  Court, 
&c.,  &c. ;  many  of  them  having  different  usages  and  modes 
of  procedure,  while  some,  like  the  Prerogative  Courts  of  York 
and  Canterbury,  exercised  in  certain  cases  powers  analogous  to 
those  of  our  Surrogates  throughout  the  Kingdom,  {Gibson's 
Codex,  978,  and  title  XXIV.;  A7jliffe's  Pareregon  91,  417,  418, 
531;  Bohwi^s  Customs  of  London^  228.) 

■  The  tribunals,  however,  whose  powers  and  modes  of  proce- 
dure approached  most  nearly  to  the  courts  held  by  our  Surro- 
gates when  this  act  was  passed  in  1787,  and  to  which  it  is 
manifest  the  framers  of  this  statute  meant  to  refer,  were  the 
Courts  held  in  each  diocese  by  the  Commissary  or  Surro- 
gate of  the  Bishop,  and  the  more  general  tribunal  held  by 
the  ordinary  of  the  Archbishop  of  Canterbury,  known  as  the 
Prerogative  Court. 

These  Courts  were  recognized  by  the  common  law  as  having 
jurisdiction  in  the  matters  of  which  they  took  cognizance,  in 
which  they  proceeded  according  to  the  course  of  the  civil  and 
the  canon  law. 

They  were  not  Courts  of  Record,  and  never  had  the  broad 
general  powers  to  review  and  correct  their  proceedings,  pos- 
sessed by  Courts  of  that  high  character.  (1  Inst.  821 ;  3  Black, 
Com.  67  ;  Doran  v.  Dempsey,  1  Bmdf.  491;  Corwin  v.  Merritt, 
8  Baro.  S.  C.  341 ;  People  v.  Corlies,  1  Sandf.  S.  C.  R.  247  ; 
Dakin  v.  Hudson,  6  Cow.  221.)  Still,  as  indispensable  to  the 
administration  of  justice,  they  had  and  exercised,  as  have  the 
Surrogates'  Courts  in  this  State  to  a  certain  limited  extent,  the 
right  of  revoking  acts  done  by  them,  as  where  a  decree  is  ob- 
tained by  collusion  or  fraud,  (Wilkins  v.  Brunt,  1  Curties  Ecc. 
R.  261 ;  Toller  on  Executors^  73.  2  Am.  ed.,)  or  where  a  later 
will  is  produced  (Laton  v.  Laton,  1  Hagg.  Ecc.  R.  688  ;  Went- 
ivortJis  Office  of  Executor^  111,  112,  14th  ed. ;  Williams  on 
Executors^  478,)  or  where  after  a  will  is  admitted  to  probate 


the  party  supposed  to  be  dead  appears,  (as  was  the  case  in  re 
Kapier,  1  Pliillm.  Ecc.  R  S3.)  They  could  revoke  letters  of 
administration  for  any  just  cause,  (Granson  v.Dom.  SJcinner's  R. 
155 ;  Taylor  v.  Shaw,  3  Jones  R.  161 ;  Wms.  on  Executors^ 
478,  Xote  1,  479,)  or  correct  mistakes  which  were  the  result 
of  oversight  or  accidentj  (Sipperly  v.  Baucos,  24  New -York 
R.  46;  Shannessy  v.  Allen,  1  Lee  Ecc.  R.  9;  Cargill  v. 
Spencer,  3  Hagg.  Ecc.  R.  146,)  or  where  through  an  acci- 
dent or  mistake  a  decree  was  taken  by  default,  they  might 
open  it,  and  allow  the  parties  in  default,  to  be  heard,  (Pier  v. 
Hastings,  1  Barb.  C.  R.  452,)  or  where  after  a  decree  for  dis- 
tribution had  been  made,  but  before  the  fund  was  actually  dis- 
tributed, a  legatee  not  known  to  be  in  existence  appeared,  the 
decree  might  be  opened  so  as  to  allow  him  to  receive  his  dis- 
tributive share,  (Farrell  v.  Smith,  2  Ball  &  Beatty^  337  ;  3  Rev. 
StcLtutes,  subdiv.  3,  §  1,  title  1,  Chap.  II.,  Part  III.,)  or  where 
they  had  acted  without  acquiring  jurisdiction  of  the  person,  or 
where  a  party  in  interest  had  not  been  cited,  or  where  no 
guardian  had  been  appointed  to  look  after  the  rights  of  an 
infant,  they  might  open  their  decree  and  allow  the  party 
affected  by  it  to  be  heard,  or  where  an  order  was  actually  made, 
but  not  entered,  through  mistake  or  accident,  they  might  order 
it  to  be  entered  nunc  protunc^  (Butter  v.  Emmet,  8  Paige,  12,) 
and  generally  might  vacate  any  act  or  proceeding  done  by 
them  which  was  irregular  and  void.  (Trimbleton  v.  Trimble- 
ton,  3  Ragg.  Ecc.  R.  243 ;  Skidmore  v.  Davis,  10  Paige,  318 
Vredenburgh  v.  Calf,  8  Paige,  127;  Corwin  v.  Merritt,  3  Barb. 
S.  C.  E.  311 ;  Proctor  v.  Wanmaker,  1  Barb.  C.  E.  302 ; 
Bloom  V.  Bendick,  1  mil,  139.) 

I  have  pointed  out,  so  far  as  it  is  shown  by  the  authoritj^  of 
adjudged  cases,  the  extent  to  which  these  Courts  have  exer- 
cised this  limited  power,  and  the  whole  may  be  summed  up 
briefly  in  the  statement  that  they  may  undo  what  has  been 
done  through  fraud,  or  upon  the  supposition  that  they  had 


32 


jurisdiction,  or  on  the  assumption  that  a  party  was  dead  who 
is  living,  or  that  there  was  no  will ;  or  they  may  open  decrees 
taken  by  default,  or  correct  mistakes,  the  result  of  oversight 
or  accident,  and  in  this  State  revoke  the  probate  of  wills  or 
letters  of  administration,  or  of  guardianship  in  the  cases  pro- 
vided for  by  statute.  These  are  all  powers  existing  of  neces- 
sity, and  indispensable  to  the  administration  of  justice,  under 
which  may  be  embraced  any  other  exercise  of  jurisdiction  of  a 
like  nature  or  character.  But  when,  as  in  this  case,  all  the 
parties  in  interest  have  been  represented  at  the  hearing,  and 
the  Court  has  given  its  final  sentence  or  decree,  I  know  of  no 
authority  showing  that  these  Courts  have  ever  exercised  the 
general  power  of  opening  and  reversing  it  again,  upon  the 
ground  that  they  had  erred  as  to  the  law,  or  had  decided 
erroneously  upon  the  facts. 

No  authority  has  been  cited  by  the  learned  and  experienced 
counsel,  who  has  argued  so  strenuously  before  me  for  the  ex- 
istence of  the  right,  and  if  any  could  be  found  I  am  sure  it 
would  not  have  escaped  his  vigilance.  I  have  myself  examined 
all  the  works  relating  to  the  practice  of  Ecclesiastical  Courts 
to  which  I  have  had  access,  and  which  embrace  Constet's,  ^ 
Bayo's,  Cootes,  Gibson^ s  Codex^  Ayl{ffe''s  Pareregon^  Oodolphins 
Orphans'*  Legacy^  CocJcburn^s  Assistant,  The  Clerics  Instructor^ 
Swinhurne  on  Wills^  Practice  of  Ecclesiastical  Courts  in  1  Brown'' s 
Civil  and  Admiralty  Laio,  and  Burns^s  Ecclesiastical  Law,  and  I 
find  nothing  to  countenance  it,  but  the  contrary,  (Watkins  v. 
Bligh,  1  Carties  Ecc,  P.,  261) 

There  is  in  the  Ecclesiastical  Courts  what  is  known  as  "  re- 
scinding a  conclusion."  After  the  cause  is  ended  upon  both 
sides,  and  the  Court  has  given  its  conclusion  upon  the  facts,  a 
motion  may.be  made  to  it  to  rescind  the  conclusion  and  allow 
the  party  applying  to  submit  additional  evidence,  (Ilammerton 
V.  Ilammerton,  2  Ilagg.  Ecc.  P.,  1 ;  on  appeal,  id.,  628  ;  In- 
gram V.  Wyath,  1  Ilagg. ^  101;  Scale  v.  Price,  2  Consistory  P., 


33 


191 ;   Middleton  v.  Micldleton,  2  Hagg.^  134 ;  Donnellan  v. 
Donnellan,  id.,  supplement^  144;  Cargil     Spence,  id., 
ment^  146  ;    Henley  v.  Doddridge,  ibid^  146;  Shannessj  v. 
Allen,  1  Lee  Ecc.  R,  9.) 

It  is  allowing  the  party  against  whom  the  conclusion  oper- 
ates to  supply  evidence,  the  want  of  which  or  the  insufficiency 
of  which  is  indicated  in  the  opinion  or  conclusion  of  the  Judge, 
such  as  when  the  proof  of  the  identity  of  a  particular  party  is 
not  sufficient,  or  there  is  any  other  defect  in  the  proof,  the 
want  of  which  is  pointed  out  by  the  Judge,  which  application 
is  granted  or  not,  in  the  sound  discretion  of  the  Court.  It  may 
be  made  before  publication,  (that  is,  when  the  depositions  are 
completed,  and  a  day  has  been  fixed  for  the  hearing ;)  but  if  made 
after,  the  party  must  show  that  the  facts  came  to  his  knowledge 
afterwards.  (Webb  v.  Webb.,  1  Ragg.  Ecc.  i?.,  349.)  It  is  in 
fact  analogous  to  the  practice  in  Common  Law  Courts  of  re- 
ceiving additional  evidence  after  the  Court  has  indicated  its 
intention  to  non-suit,  or  of  granting  a  new  trial  after  verdict, 
upon  the  ground  of  newly  discovered  evidence. 

The  course  of  procedure  was  uniformly  this :  When  the  de- 
positions were  completed  a  day  was  assigned  for  the  hearing. 
On  that  day  the  parties  were  heard,  after  which  the  Court  pro- 
nounced its  sentence,  and  the  Clerk  or  one  of  the  writers  of 
the  Court  was  instructed  to  draw  it  up  formally  in  v/riting,  and 
a  day  was  assigned  for  the  party  against  whom  it  operated,  to 
show  cause  why  it  should  not  be  made  definite.  Before  it  was 
made  definite  the  party  might  move  the  Court  to  rescind  its 
conclusion,  and  receive  additional  evidence ;  but  if  no  such 
motion^  was  made,  and  on  the  day  assigned  no  cause  was  shown, 
or  if  the  party  failed  to  appear  after  being  called  three  times, 
the  sentence  became  definite,  and  the  party  had  no  further 
remedy  except  by  appeal  to  a  higher  tribunal — the  time  for 
which  was  limited.  A  decree,  whether  interlocutory  or  defin- 
ite, was  final,  and  there  was,  in  the  language  of  Constet,  "  no 


34 


hope  of  another  sentence  or  decree.  It  put  an  end  to  the 
thing."  {Constefs  Practice  of  Spiritual  or  Ucclesiastical  Courts^ 
Chap,  y.,  YI,  Part  III,  edition  of  1708;  Oughton's  Ordo 
Judiceorum,  tit.  124  to  131.) 

This  was  the  course  of  procedure  in  these  Courts  when  the 
Act  of  1Y87  was  adopted,  and  though  it  was  afterwards  modi- 
fied in  some  particulars,  it  underwent  no  change  as  respects  the 
conclusive  and  final  character  of  the  decree  or  sentence.  (3 
Burms  Ecclesiastical  Law^  207,  211,  217,  218,  Philmore's  edi- 
tion ;  1  BrowTbS  Civil  and  Admiralty  Laio^  451,  Am.  ed.) 

The  practice  which  prevailed  in  the  Court  of  Chancery,  of 
giving  relief  after  the  decree  was  enrolled,  by  a  bill  of  review, 
(O'Brien  v,  O'Connor,  2  Ball  iSo  B.,  154 ;  Young  v:  Kelly,  16 
Yes.^  343,)  or  of  entering  a  caveat  after  the  decree  was  ren- 
dered, but  before  it  was  enrolled,  and  which  entitled  the  party 
dissatisfied  with  the  decision  to  petition  for  a  reheariog  upon 
the  certificate  of  counsel,  was  never  adopted  in  the  Ecclesias- 
tical Courts.  There  was,  by  the  canon  law,  the  practice  of 
entering  a  caveat  to  stop  proceedings  where  a  question  was 
raised  as  to  admitting  a  will  to  probate,  or  as  to  the  right  of 
administration,  which  it  was  said  stood  in  force  for  three 
months ;  but  this  was  a  mere  precautionary  measure  to  prevent 
the  ordinary  from  doing  what  was  wrong,  and  was  not  the 
foundation  of  any  proceeding  to  obtain  a  re-hearing  or  the  re- 
versal of  a  decree  or  sentence.  {Gihsoji's  Codex^  778 ;  Go- 
dolplMs  Orpliqins'  Legacy^  Ph.,  2,  c.  33,  §  5  ;  3  Burns's  Ec- 
clesiastical Law^  224,  Philmore's  edition  ;  Trimbleton  v.  Trim- 
bleton,  3  Eagg.  Ecc.  R,  243.) 

There  was,  in  fact,  no  occasion  for  adopting  in  these  Courts 
the  practice  which  prevailed  in  Chancery  of  a  bill  of  review 
or  allowing  a  re*hearing,  or,  as  in  the  Common  Law  Courts,  of 
directing  a  new  trial,  as  all  that  was  procured  in  these  Courts  by 
a  bill  of  review,  a  re-hearing  or  a  new  trial,  was  obtained  in  the 
Ecclesiastical  Courts  by  an  appeal.    The  case  came  up  on  ap- 


35 


peal  exactly  as  it  was  presented  to  the  Court  below.  The 
j^ppellate  Court  could  review  the  facts  as  well  as  the  law. 
They  might  come  to  a  different  conclusion  upon  a  contested 
question  of  fact  from  that  which  was  arrived  at  in  the  tribunal 
below,  and  might  in  their  discretion  allow  new  evidence  to  be 
given.  If  the  probate  of  a  will,  for  instance,  was  reversed 
upon  appeal,  and  the  parties  could  supply  the  evidence  essen- 
tial to  prove  its  due  execution,  the  evidence  was  given,  not  in 
the  Court  below,  but  in  the  Appellate  Court,  and  the  will  was 
admitted  to  probate  there.  {CocJchurn's  Cleric's  Assistant,  282, 
Dublin  ed.  of  1703  ;  1  Brown^s  Civil  and  Admiralty  Laic,  500, 
Am,  ed. ;  Hammerton  v.  Ilammerton,  2  Hagg.  Ecc.  i?.,  623  ; 
Burgoyne  v.  Free,  2  Adams  Ecc.  B.^  405  ;  Eagleton  v.  King- 
ston, 8  Vesey,  466;  Williams  v.  George,  3  Curties  Ecc.  R.,  343 ; 
Eochefort  v.  Nugent,  1  Brown  P.  (7.,  590;  Toller^ s  Law  of 
Executors^  75,  2  Am.  ed.  ;  Jephson  v.  Keirs,  3  Knapp^  136.) 
In  the  Common  Law  Courts  it  is  very  different.  There  the 
verdict  of  the  jury^upon  a  contested  question  of  fact  is  con- 
dusive;  and  if  the  Judge  before  whom  the  cause  was  tried  has 
committed  any  error  cf  law  which  might  possibly  have  influ- 
enced the  verdict,  there  is  no  remedy  but  to  order  the  cause  to 
be  tried  over  again.  Whatever,  therefore,  could  be  obtained 
in  the  Court  of  Chancery  by  a  re-hearing,  or  in  the  Common 
Law  Courts  by  a  new  trial,  was  obtainable  in  the  Ecclesiastical 
Courts  by  an  appeal;  and  that  being  the  remedy,  the  inferior 
Courts  never  exercised  tke  general  power  of  reviewing  their 
decrees  for  errors  of  law  or  of  fact  The  Surrogate's  Court 
here  holds  exactly  the  same  position.  The  Supreme  Court  to 
which  the  appeal  lies,  may,  if  it  think  proper,  receive  additional 
evidence,  which  it  did  in  the  appeal  from  this  Court  in  the 
case  of  Ferrie  v.  The  Public  Administrator,  (4  Bradf.  28. — 23 
N.  Y,R,  90,)  I  am  therefore  very  clear  upon  the  point,  that  it  / 
can  not  exercise  a  power  which  is  in  no  way  incident  to  those 
enumerated  in  the  Revised  Statutes,  and  which  never  belonged 
to  the  Ecclesiastical  Courts  exercising  a  like  jurisdiction. 


36 


It  is  next  claimed  that  the  Surrogate  never  acquired  juris- 
diction of  the  person  of  the  petitioner,  upon  the  ground  that 
she  was  not  cited  in  the  mode  require.d  by  law.  On  recurring 
to  the  affidavit,  it  appears  that  the  citation  was  served  upon 
her  in  the  presence  of  her  mother,  her  testamentary  guardian, 
that  she  was  informed,  and  had  full  knowledge  of  its  meaning 
and  ejffect,  she  being  then  in  her  sixteenth  year, — which  she, 
however,  denies ;  that  she  attended  upon  the  accounting,  and 
that  she  knew  of  the  matters  which  took  place  there,  which 
she  also  denies;  and  that  Gabriel  Van  Cott,  Esq.,  an  experi- 
enced person  in  matters  of  account,  the  Chief  Clerk  in  the 
Surrogate's  Office,  was  appointed  by  the  Court  her  special 
guardian  upon  such  accounting ;  that  he  acted  upon  the  ap- 
pointment, and  made  an  examination  of  the  books,  documents 
and  papers  belonging  to  the  estate  ;  that  Alexander  W.  Brad- 
ford, Esq.,  the  former  Surrogate,  acted  on  behalf  of  a  sister, 
and  for  a  brother  of  the  petitioner ;  and  that  the  executor's 
account  was  made  under  the  directions  of  Yan  Cott,  and  was 
examined  and  approved  by  Judge  Bradford.  The  service  of 
the  citation  was  in  the  mode  pointed  out  by  the  Chancellor 
in  Kellett  v.  Eathbone,  (4  Paige,  106,)  upon  the  petitioners  in 
the  presence  of  her  legal  guardian.  It  was  sufficient,  therefore, 
to  give  the  Surrogate  jurisdiction,  and  her  general  guardian 
having  an  interest  adverse  to  her,  a  special  guardian  was  ap- 
pointed by  the  Court,  which  was  the  proper  course,  (Turner 
V.  Felton,  2  Philm.  Ecc.  Rep.^  98;  Kellett  v.  Eathbone,  snj)ra,) 
and  even  if  there  had  been  any  defect  in  the  citation  or  in 
the  service  of  it,  the  petitioner  actually  appeared  before  the 
Surrogate,  which  was  sufficient  to  give  him  jurisdiction  to  ap- 
point a  special  guardian  to  act  for  her.  {Constefs  Practice  of 
Spiritual  Courts,  51,  52;  Ex  parte  Dawson,  3  Brad/.,  130.) 

It  is  alleged  that  by  the  fourth  section  of  Title  3,  Chap. 
VIIL,  Part  II.  of  the  Eevised  Statutes,  a  guardian  could  not  be 
appointed  to  act  for  the  petitioner  in  this  proceeding,  unless 


37 


upon  her  own  application  by  petition  to  the  Surrogate,  as  she 
was  over  fourteen  years  of  age.  The  section,  however,  to 
which  the  counsel  refers  in  support  of  this  objection  relates  to 
the  appointment  of  general  guardians  of  the  persons  and  es- 
tates of  infants,  and  not  to  the  appointment  of  special  guard- 
ians to  act  for  them  in  a  suit  or  proceeding,  or  as  they  are 
commonly  called,  guardians  ad  litem^  (Kellinger  v.  Koe,  7 
Paige^  862.)  The  authority  to  appoint  guardians  ad  litem  is 
not  only  found  in  the  general  powers  given  to  Surrogates  in 
the  Seventh  Subdivision  of  Section  1,  Title  1,  Chapter  IT.,  to 
appoint  guardians  for  minors,  which  is  to  be  interpreted  in 
connection  with  the  Twentieth  Section  of  the  Act  of  1787, 
before  referred  to ;  but  this  is  an  authority  which  is  incident 
to  every  Court  of  Justice,  whether  it  be  of  inferior  or  of  gen- 
eral jurisdiction,  and  may  be  exercised  by  a  Justice  of  the 
Peace.  [Co.  Lit,  89,  a.  n.  3  Black.  Com.  427;  2  Kent.  Com. 
229;  Mackey 'y.  Gray,  2  John's  R.,  192;  Clark 'y.  Gilmartin, 
12  N.  Hamp.  515.),  In  the  appointment  of  guardians  ad  lilem^ 
the  consent  of  the  infant  is  not  necessary,  for  if  he  refuse  to 
name  a  guardian,  the  Court  will  appoint  one  to  act  for  him. 
(Stone  V,  Atwell,  Strange  R.  1076  ;  Knickerbocker  v.  De  Freest, 
2  Paige  R.,  304,)  and  this  is  the  practice  in  Ecclesiastical 
Courts,  (4  Burns' s  Ecclesiastical  Law,  151,  by  Philimore,  9th 
London  edition.)  ISTor  is  it  necessary  that  the  infant  should  ac- 
tually appear  in  Court,  (Knickerbocker  z;.  De  Freest,  2  Paige  R.. 
804;  Mason  v.  Denniston,  15  Wend.  67;  Peck  v.  Holstead,  21 
III  R.,  219 ;  Jack  v.  Davis,  29  Geo.  R,  219.)  Formerly  the 
practice  was,  where  the  infant  lived  at  a  distance,  to  appoint 
a  commissioner  dwelling  in  the  vicinity  of  the  infant,  to  se- 
lect a  fit  person  to  act  for  him,  (Constet's  Practice  of  Spiritual 
Courts,  p.  51,  52,  53,)  but  even  this  can  now  be  dispensed 
with,  for  if  a  person  offers  to  appear  for  the  infant,  known  to 
the  Court  to  be  respectable  and  capable,  he  will  be  appointed 
at  once.  (Smith  v.  Palmer,  3  Beav.,  E.  10;  Jongsina  v.  Pfiel, 
9  Ves.  387;  Banta  v.  Calhoun,  2  A.  K.  Marsh,  167;  Knicker- 


38 


bocker  v.  De  Freest,  2  Pai(/e,  808,  and  note  of  the  Eeporter ; 
Conklin  v.  Hall,  2  JBarh.  C.  R.,  186.) 

Nothing  to  the  contrary  appearing  in  the  evidence  before 
me,  I  must  presume  that  the  Surrogate  appointed  the  guardian 
acl  litem,  on  the  return  of  the  citation,  according  to  the  estab- 
lished practice  of  the  Court,  (Downing  v.  Euger,  21  Wend., 
184 ;  Eex  v.  Hawkins,  10  Fast  211  ;  Monk  v.  Butler,  1  Rol 
R.,  83;  Powell  v.  Millbank,  3  Wils.  R,  855;  Foot  u  Stevens, 
17  Wend.,  483  ;  Willard  on  Executors,  82.) 

The  petitioner,  therefore,  being  properly  before  the  Court, 
the  Surrogate  acquired  jurisdiction  to  make  any  order  or  de- 
cree in  the  matter  affecting  her  interests.  The  statute  declares 
that  the  final  settlement  of  the  account  and  the  allowance 
thereof  by  the  Surrogate  shall  be  as  against  all  persons  interested 
in  the  estate,  upon  whom  the  citation  was  served,  conclusive 
evidence  of  the  following  facts  and  of  no  other :  i.  That  the 
charges  in  the  account  for  money  paid  to  creditors,  legatees, 
next  of  kin,  and  for  necessary  expenses,  are  correct.  2.  That 
the  executor  or  administrator  has  been  charged  all  the  interest 
for  money  received  by  him  and  embraced  in  his  account,  for 
which  he  was  legally  accountable.  3.  That  the  moneys  stated 
in  such  account  as  collected,  were  all  that  were  collectable  on 
the  debts  stated  in  such  account,  at  the  time  of  the  settlement 
thereof.  4.  That  the  allowance  in  the  accounts  for  any  de- 
crease in  the  value  of  any  assets  and  the  charges  therein,  for 
the  increase  of  such  value,  was  correctly  made,  (3  Rev.  Stat, 
181,  §  71,  6th  ed.)  It  is  only  in  respect  to  the  matters  herein 
enumerated  that  the  accounting  became  conclusive  evidence 
by  statute.  As  respects  any  other  matters,  this  provision  does 
not  operate  to  discharge  the  executor,  but  as  to  them,  he  is 
open  to  any  remedies  that  may  exist  against  him.  (Bank  of 
Poughkeepsie  v.  Hasbrouck,  2  Seld.,  222.) 

The  petitioner  insists  that  some  of  the  items  erroneously 
allowed  do  not  come  within  either  of  the  four  subdivisions 


39 


above  enumerated,  and  that  consequently,  she  is  entitled  to 
have  a  re-accounting  as  to  them.  But,  if  there  be  any  such 
items,  the  accounting  is,  as  an  accounting,  as  conclusive  as  to 
them  as  it  is  in  respect  to  items  embraced  within  the  Statutory 
provision.  An  accounting  in  a  Spiritual  or  Ecclesiastical 
Court  was  little  else  than  a  preparatory  proceeding  to  gain 
some  insight  into  the  state  of  the  fund,  for,  if  brought  by  a 
creditor,  the  Court  had  no  power  to  decree  the  payment  of  his 
debt,  or  if  brought  by  a  legatee  or  next  of  kin,  though  the 
Court  could  entertain  a  suit  for  a  legacy  or  for  the  distribution 
of  the  resic^ue  of  an  estate,  yet  as  it  had  no  means  to  ascertain 
the  amount  of  the  debts,  it  could  not  afford  an  effectual 
remedy.  It  was,  in  fact,  as  Lord  Keeper  l^orth  called  it,  a 
4ame  jurisdiction,  and  consequently,  the  creditor  had  to  sue  at 
law,  or  the  legatee  or  next  of  kin  to  bring  a  suit  in  equity,  and 
neither  at  law  nor  in  equity  was  any  regard  paid  to  the 
accounting,  if  one  had  been  had  in  the  Spiritual  Courts.  The 
Court  of  Chancer^^,  on  a  bill  filed  for  the  payment  of  a  legacy 
or  for  distribution,  would  order  an  accounting,  as  if  none  had 
taken  place,  (Bissell  v.  Axtell,  2  Yern.^  47,)  and  at  law,  the 
account  as  allowed  by  the  ordinary,  could  not  be  given  in 
evidence,  (Turvie's  case,  2  Rolls.  Ahn.j  678.)  The  accounting, 
however,  in  the  Spiritual  Court  was  conclusive  there,  for  if 
after  the  investigation  of  the  account  the  ordinary  found  it  to 
be  true  and  pronounced  for  its  validity,  and  all  the  parties  in- 
terested had  been  cited,  the  sentence  was  final,  and  the  executor 
or  administrator  could  be  called  to  no  further  account, 
{Oughton^s  Ordo  Jiidiceonimj  So4:-6  ]  Swinhurne  on  Wills,  865, 
Lond.'ed. ;  4:  Burns'' s  Ecclesiastical  Laiu^  9th  Lond.  ed.,  by  Phili- 
more,  605,  609  ;  Eainer's  case,  1  Deane^s  Ecc.  Rep.^  317.)  Our 
Statute,  however,  has  made  the  final  settlement  of  the  account, 
and  the  allowance  of  it  by  the  Surrogate,  conclusive  evidence 
as  to  certain  facts  against  creditors,  legatees,  next  of  kin, 
and  all  other  persons  in  any  way  interested  upon  whom  the 


40 


citation  has  been  served,  and  of  which  the  executor  may  avail 
himself,  whether  prosecuted  here  or  in  a  court  of  law  or  in 
equity.  As  to  other  facts  or  items,  it  is  conclusive  here  at 
least,  so  far  as  the  right  exists  to  compel  an  account,  though  it 
would  be  of  no  avail  to  the  executor  or  administrator  in  another 
forum.  (Wentz  v.  Jenkins,  11  Barb.^  548  ;  Bank  of  Pough- 
keepsie  v,  Hasbrouck,  2  Seld.^  222.)  Whether  it  would  be  here 
or  not  on  an  application  to  compel  distribution  is  a  question 
upon  which  it  were  better  that  I  should  express  no  opinion,  as, 
should  it  arise,  it  may  be  examined  hereafter. 

It  is  insisted  next,  that  both  as  respects  the  items  which  are 
embraced  within  this  provision  of  the  Statute,  as  well  as  those 
which  are  not,  the  account  is  not  conclusive  against  the 
petitioner,  inasmuch  as  she  was  a  minor  at  the  time  when  the 
accounting  was  had, — and  that  though  she  may  have  been 
present  in  Court,  and  have  had  a  guardian  ad  litnn  to  look 
after  her  interest,  still  that  she  is  entitled  either  before  or 
after  her  majority  to  have  a  re-accounting,  if  she  can  show 
that  any  item  has  been  erroneously  allowed,  and  that  the 
allowance  of  it  is  prejudicial  to  her  interests.  In  Courts  of 
Equity  the  practice  exists,  where  the  effect  of  the  decree  is  to 
divest  the  infant  of  an  interest  in  land,  or  where  a  conveyance 
is  required  of  an  infant,  and  in  cases  of  foreclosure,  (Miller  v. 
Dennia,  3  Johns  C,  R,  867;  Wright  v.  Miller,  4  Mel,  18; 
DanieW  CJiancery  Practice^  182, 183, 1st  Am.  ed.,)  to  give  him  a 
day  after  he  comes  of  age,  to  show  cause  why  the  decree 
should  not  be  binding  upon  him ;  but  in  all  other  cases,  as  a 
general  rule,  he  is,  where  a  guardian  ad  litem  has  been  ap- 
pointed to  act  for  him,  as  much  bound  by  the  decree  as  an 
adult.  (Woodhara  v.  Moor,  ToiUlVs  R.  108,  edition  of  1619; 
Wall  V.  Bushley,  1  Broiun's  C,  484;  Sheffield  v.  The  Duch- 
ess of  Buckinghamshire,  ^^^esfs  i?.,  684;  lAtk.,QZl',  Shield 
V.  Power,  29  Miss.^  815 ;  Alexander  v.  Trary,  9  Ind.  i?.,  174 ; 
Creath  v.  Smith,  20  Miss.  R,  118.)    The  rule  in  equity  is,  that 


41 


the  infant  is  bound  by  the  acts  of  the  guardian  ad  litem^  if  lie 
acts  bona  fide.  {Daniels'  Chancery  Practice^  182,  1st  Am.  ed.) 
A  decree  confirming  or  avoiding  a  will  where  an  infant  is  heir 
or  devisee,  is  conclusive  upon  him,  unless  the  Court  should 
give  him  a  day  to  show  cause,  which  is  now  no  longer  given, 
(Whitechurch?;.  Whitechurch,  2  Eq.  Ca.  Ah.,  303  ;  Thornton  v. 
Blackburn,  2  Keh.,  7;  1  Harrison's  Ch.  Prac,  Ed.  Newl,  367, 
note ;)  and  in  a  Court  of  Equity  the  accounting  which  is  had 
preparatory  to  a  decree,  of  foreclosure  is  equally  so  ;  and  the 
infant,  if  a  day  has  been  given  to  him  to  show  cause,  is 
limited  to  showing  errors  in  the  decree,  (Mallock  v.  Golton,  3 
P.  Wms.  R,  350 ;  Bennett  v.  Hamill,  2  Sch.  and  Lef,  566.) 

In  the  exercise  of  the  ample  powers  with  which  Courts  of 
Equity  are  clothed,  they  have  in  certain  cases,  where  injustice 
has  been  done  to  the  infant  by  a  decree,  afforded  him  relief,  after 
^ke  has  come  of  age,  by  a  re-hearing  or  by  a  bill  of  review  ;  but, 
as  I  have  already  stated,  no  such  procedure  was  known  in  the 
Ecclesiastical  Courts.  In  the  State  of  Indiana,  Probate  Courts 
are  clothed  by  statute,  with  all  the  powers  of  a  Court  of  Chan- 
cery in  the  matters  submitted  to  their  cognizance,  and  a  dis- 
tinction is  made  between  a  proceeding  which  is  for  the  benefit 
of  infants  and  one  which  is  against  them.  In  the  former  case 
they  are  concluded  by  the  acts  of  the  guardian  ad  litem  unless 
he  is  shown  to  have  acted  in  bad  faith  ;  but  in  the  latter  they 
may  open  the  decree  at  any  time  within  one  year  after  they 
arrive  at  mature  age,  by  filing  a  petition  for  a  review,  {Act 
organizing  Probate  Comets,  Feb.  17,  183S  ;  Revised  Statutes  of 
Indiana^  C.  24,  p.  174 ;)  and  unless,  as  in  this  instance,  such  a 
power ^  is  given  by  statute,  I  know  of  no  authority  for  its 
exercise  by  Courts  of  this  description. 

In  the  earlier  works  upon  the  practice  of  the  Ecclesiastical 
Courts,  some  doubt  appears  to  have  been  entertained  as  to 
whether  infants  could  be  affected  at  all  by  the  final  accounting 
of  an  Executor  or  Administrator.    In  Cockburn's  Clerk's 


42 


Assistant,  (288,  Dublin  edition  of  1753,)  it  is  said,  "  minors 
can  not  be  prejudiced  by  it,  but  may  call  executors  to  account, 
though  it  is  the  opinion  of  some  that  minors  above  seven 
years  may  be  called  to  constitute  a  proctor,  and  pray  that 
guardians  or  curators  may  be  assigned  them ;  and  if  they  do 
not  do  so,  all  acts  in  pain  of  their  contumacy  will  be  valid. 
And  it  is  also  held  that  the  Judge,  from  his  of&ce,  may  assign 
minors  under  seven  years  of  age  guardians,  and  if  he  does, 
that  the  acts  done  in  their  presence  are  good,  but  querey  In 
the  Clerk's  Instructor,  however,  a  contemporary  and  far  more 
reliable  work,  the  forms  are  given  by  which  infants,  in  elect- 
ing a  guardian  ad  litem,  bind  themselves  to  allow  as  firm  and 
valid  whatever  the  guardian  might  do  or  cause  to  be  done  in 
the  premises.    {The  Clerk^s  Instructor,  184,  ed.  of  1740.)  In 
the  subsequent  works  which  I  have  consulted,  no  allusion  is 
made  to  the  doubt  expressed  in  Cockburn,  nor  is  there  any 
reference  to  the  subject,  for  accountings  in  these  Courts,  after 
the  Court  of  Chancery  came  to  exercise  a  co-ordinate  and  more 
effectual  jurisdiction,  became  exceedingly  rare.    {See  the  Re- 
marks  of  Sir  John  Nicholl,  in  Young  v.  Skilton,  3  Hagg.  Fee. 
R,  782.)    Little  weight,  however,  is  to  be  given  to  the  doubt 
entertained  by  Cockburn,  as  the  practice  of  the  Court  of  Chan- 
cery upon  this  subject  was  not  settled  or  very  clearly  defined 
at  the  time  when  his  work  was  published.    The  opinion  of  Sir 
Joseph  Jekyl,  in  1722,  as  to  the  cases  in  which  the  Court 
would  give  an  infant  a  day  to  show  cause  after  he  became  of 
age,  was  in  direct  conflict  with  that  of  Lord  Hardwicke  in 
1737,  (Eyre  v.  The  Countess  of  Shaftesbury,  2  P.  Wm.  R,  103 ; 
Sheffield  v.  The  Duchess  of  Buckingham,  West's  i?.,^684,)  and 
perhaps  the  subject  may  be  still  open  to  some  controversy, 
but  the  more  general  rule  in  Courts  of  Equity  is  as  I  have 
stated  it. 

Our  statute  has  declared  that  the  final  accounting  shall  be 
conclusive  against  creditors,  legatees,  next  of  kin,  and  all  other 


43 


persons  interested,  and  I  am  in  effect  asked  to  add  to  these 
words,  "  except  in  the  case  of  infants."  I  do  not  feel  at  liberty 
to  do  so.  The  Eevised  Statutes  contain  numerous  provisions 
designed  for  the  protection  of  infants,  and  if  the  Eevisors,  or 
the  Legislature  by  whom  the  Revised  Satutes  were  passed,  had 
intended  that  this  final  settlement  should  be  of  no  effect  as 
respects  infants,  I  think  they  would  have  said  so.  It  is  argued 
that  they  made  no  provision  for  the  citation  or  the  representa- 
tion of  infants  upon  this  accounting,  and  that  the  omission  to 
do  so  indicates  that  the  accounting  was  not  to  be  conclusive  as 
to  them.  There  is,  however,  a  general  provision,  where  the 
executor  or  administrator  desires  to  have  the  account  finally 
settled,  requiring  the  Surrogate  to  issue  a  citation  to  the  cred- 
itors, legatees,  and  next  of  kin  to  attend  at  the  settlement. 
(3  Revised  jStal,  180,  5th  ed.)  This  has  always  been  under- 
stood as  including  infants,  and  the  practice  has  been  uniform 
in  this  Court,  and,  I  apprehend,  in  every  other  Surrogate's 
Court  in  the  State,  to  cite  them  and  appoint  guardians  ad  litem 
to  watch  over  their  interests.  Provision  is  also  made  that  an 
executor  or  administrator  may  be  compelled  to  account  by  a 
person  on  behalf  of  any  minor  having  a  demand  against  the 
personal  estate,  (3  jRev.  Stat.^  178,  8d  ed.,)  and  it  was  not 
necessary  to  provide  in  the  article  upon  accounting  for  the 
manner  in  which  infants  should  be  represented,  as  the  Surro- 
gate is — as  has  been"  already  shown  —  clothed  with  ample 
power  to  appoint  guardians  ad  litem  to  act  in  all  cases  on  their 
behalf.  The  provision  declaring  that  the  final  accounting  shall 
be  conclusive  embraces  the  chief  matters  in  respect  to  which 
an  executor  or  administrator  is  required  to  account ;  and  as 
respects  matters  not  embraced  within  its  provisions,  the  pass- 
age from  Cockburn  shows  that  in  his  time  the  opinion  was 
entertained  that  if  the  Court  appointed  a  guardian  to  look 
after  the  interests  of  infants,  the  acts  done  in  his  pre- 
sence would  be  binding  upon  them  ;  and  it  appears  to  have 


44 


been  subsequently  the  established  practice  of  these  Courts  to 
appoint  guardians  in  all  cases  where  their  interests  might 
be  affected,  and  they  were  required  in  the  citation  to  appear 
by  guardian,  (Turner  v.  Felton,  2  Philim.  Ecc.  J?,  93;  4 
Burns's  Ecclesiastical  Law^  151,  9th  London  edition,  by  Phili- 
more  ;  1  Broiuiis  Civil  and  Admiralty  Law^  454,  Am.  ed.) 

If  the  final  accounting  is  to  have  no  effect  upon  the  interests 
of  infants,  then  it  would  seem  to  be  entirely  unnecessary  to 
appoint  guardians  ad  litem  to  look  after  their  interests ;  nor 
could  the  distribution  of  assets,  to  which  the  accounting  is  pre- 
liminary, be  final,  if  an  infant,  though  represented  upon  the 
accounting,  is  at  liberty  at  any  time  afterwards  to  have  the 
whole  account  re-adjusted.  Matters  would  remain  in  the  great- 
est uncertainty,  and  infinite  difficulties  would  be  created,  if  this 
settlement  is  liable  to  be  opened  in  every  case  where  an  infant 
was  a  party  at  the  time  of  the  adjustment.  It  is  the  duty  of 
Courts  to  see  that  the  rights  of  infants  or  minors  are  protected, 
and  that  duty  is  discharged  in  any  suit  or  proceeding  by  ap- 
pointing capable  and  disinterested  persons  to  appear  for  them 
and  watch  over  their  interests.  If  they  do  not  act  lona  fide^  or 
if  there  is  any  fraud  or  collusion,  any  deception  or  surprise 
upon  the  Court,  the  infant  is  entitled  to  have  the  decree  set 
aside ;  but  to  go  beyond  this,  and  hold  that  infants  are  not  to 
be  affected  by  any  proceeding,  that  they  are  to  have  the  right 
in  all  cases,  at  any  time  afterwards,  to  have  ^he  settlement 
opened  and  re-adjusted,  if  they  can  show  that  any  item  has  been 
erroneously  allowed,  is  in  ray  judgment  to  carry  the  duty  of 
protecting  them  to  an  unreasonable  extent.  If  an  executor 
or  administrator  is  never  to  have  a  final  settlement  of  his  ac- 
counts, or  be  discharged  from  his  trust  as  long  as  there  is  an 
infant  still  in  his  minority — if  he  must  wait,  say  for  twenty 
years  or  more,  before  he  can  hope  to  be  finally  discharged,* 
then  I  apprehend  that  few  would  be  willing  to  undertake  the 
administration  of  such  a  trust.    As  I  have  said,  if  any  fraud  or 


45 


collusion  has  been  practiced  upon  the  accounting,  relief  should 
undoubtedly  be  given,  for  it  can  not  be  that  the  Statute  meant 
that  it  should  be  conclusive  in  such  a  case ;  but  with  that  ex- 
ception, if  all  the  parties  in  interest  have  been  duly  cited,  and 
infants  are  represented  in  the  mode  established  by  law,  the 
accounting  in  my  judgment  is  conclusive  and  final. 

It  only  remains  to  determine  whether  fraud  or  collusion  has 
been  shown,  and  after  fully  considering  the  evidence,  I  do  not 
feel  that  I  would  be  justified  in  opening  the  account  upon  the 
assumption  that  that  has  been  established.  The  facts  alleged 
in  the  petitioner's  affidavit,  and  which  would  mainly  tend  to 
show  it,  are  denied  in  the  affidavit  of  the  executors,  and  neither 
the  items  alleged  to  have  been  erroneously  allowed,  nor  the 
other  circumstances  set  forth  in  the  petitioner's  affidavit,  are  of 
a  character  to  warrant  me  in  holding  that  fraud  or  collusion 
was  practiced  upon  the  petitioner  to  get  the  accounts  passed. 
Still  the  case  is  not  free  of  suspicion.  The  relation  which 
the  Executor  has  held  to  the  petitioner  and  to  the  estate  is 
a  peculiar  one.  He  was  a  clerk  of  the  deceased,  and  was 
appointed  by  the'testator  his  executor  in  connection  with  the 
widow  and  another  person.  After  the  testator's  death,  he 
married  the  widow,  by  whom  he  has  had  three  children.  He 
alone,  during  the  long  period  that  has  elapsed  since  the  testa- 
tor's death,  has  had  the  entire  control  and  management  of  the 
estate ;  and  the  mother,  for  many  years  his  wife,  was  during 
this  period  the  testamentary  guardian  of  the  testator's  children, 
the  petitioner  and  her  brothers  and  sisters  living  with  her 
mother  and  the  executor  as  one  family.  Yery  serious  charges 
against  the  Executor,  in  the  management  and  discharge  of  his 
trust,  .are  set  forth  in  the  petitioner's  affidavit,  and  not  denied 
in  the  affidavit  made  by  him  ;  he  relying  chiefly  upon  a  general 
^objection  to  the  want  of  jurisdiction  in  the  Court  to  call  him  to 
any  further  account,  though  his  counsel,  on  the  argument,  gave 
an  oral  explanation  of  the  matters  set  up  in  the  petitioner's 


46 


affidavit,  which  would  seem  to  be  satisfactory.  Where  the 
case  is  one  of  an  infant  placed  under  the  circumstances  in 
which  this  petitioner  was  placed,  and  she  insists  that  she  was 
deprived  of  her  rights  by  fraud  or  collusion,  the  Court  should 
act  with  great  caution,  and  afford  her  an  ample  opportunity  if 
it  is  in  her  power  to  establish  it.  It  is  more  especially  so  in 
the  present  case,  as  she  has  chiefly  relied  upon  other  grounds 
to  be  relieved  from  the  effect  of  the  decree,  and  in  which  my 
conclusions  are  against  her.  I  shall  have  to  decide  against  her 
on  this  ground  also,  deeming  the  evidence  before  me  insuffi- 
cient to  sustain  it ;  but  I  shall  do  so  without  prejudice  to  her 
right  to  make  a  new  application,  if  she  can  bring  facts  and  cir- 
cumstances to  the  knowledge  of  the  Court  which  will  satisfy 
it  that  there  has  been  fraud  or  collusion  on  the  part  of  the 
Executor  in  obtaining  the  accounting. 


I  ]sr  D  E  X 


A 

Aasdom,  Law  of,  9. 
Accident,  31,  32. 
Accounting,  9,  38. 

Conclusiveness,  of,  38,  39,  40,  41,  42,  43. 

Practice,  on,  39. 

What  it  was  in  Ecclesiastical  Courts,  39. 

Conclusive  there  39,  though  not  in  other  Courts,  40. 

Of  no  effect  in  Courts  of  Law  or  Equity  except  by  statute,  39. 

Conclusive  evidence  as  to  certain  facts  in  all  Courts  by  statutes,  or  against 

creditors,  legatees,  next  of  kin  and  persons  interested,  on  whom  citation  is 

served,  38,  39,  40. 
When  it  is  conclusive  upon  infants,  40,  43,  44,  45. 

Opened  if  infants  have  appeared  by  guardians,  Avhere  fraud  or  collusion  has 
been  practised,'44. 
Accounts,  17,  18,  19,  23,  2Y. 
Administration  of  Estates,  18,  34. 

Letters,  of,  9,  16,  17,  21,  22,  23,  25,  26,  29,  31,  32 

Records,  of,  17,  22,  25,  26. 
Administrator,  23. 

Public,  24,  25. 
Affidavit,  25,  26,  of  peittioner,  36,  45 
Albany,  City  of,  21,  23. 
Alexander  v.  Tracy,  40. 

Amsterdam,  New,  City  of,  9.  Tice-Director  of,  id.  Schout  Fiscal,iid.  Council  of,  id. 
Andrews,  Law  of,  Xew-York,  53. 

Appeal,  9,  21,  in  Ecclesiastical  Courts,  39,  Practice,  on,  35. 
Appearance  of  Infants,  Effect  of,  36. 
Appointment,  Council  of,  22. 

Archbishop  of  Canterbury,  probate  jurisdiction  of,  12,  14,  15,  16,  30.  Ordinary  or 

Delegate,  of,  15. 
Assets,  18. 

Assembly,  Colonial,  of  Xew-York,  11,  13. 
Assize  Court  of,  10. 
Auditor,  IS. 

Ayliffe's  Pareregon,  13,  30,  32. 


48 


B 

Bank  of  Pouglikeepsie  v.  Hasbrouck,  88,  40. 

Banta  v.  Calhoun,  SY.  ' 

Banyan  Goldsbrow,  20. 

Bayos  Practice,  32. 

Bennett  v.  Harrison,  39.  ' 

Bequests,  23,  26. 

Bissell  V.  Axtell,  39. 

Bishop  of  London,  probate  jurisdiction  of,  12,  14,  16,  30.    Commissary  of,  IG. 

Bloom  V.  Burdick,  31. 

Blaekstone's  Commentaries,  29,  30,  37. 

Bohun's  Customs  of  London,  30. 

Books,  19. 

Bridges,  Dr.,  14,  15. 

Bradford,  Hon.  Alexander  W.,  2,  36. 

Brick,  Joseph  W.,  estate  of,  2. 

Brown's  Civil  and  Admiralty  Law,  22,  34,  35,  44. 

Burgomasters  and  Schepens,  Court  of,  9. 

Records  of,  10. 
Burgoyne  vs.  Free,  35. 
Burns's  Ecclesiastical  Law,  32.,  34,  39,  44. 
Business,  unfinished  of  Surrogates. 

c 

Canterbury,  probate  jurisdiction  of  Archbishop  of,  12,  15,  16. 
Cargill  V.  Harrison,  31. 
Canon  Law,  23,  27,  30,  34. 
Cargil  V.  Spence,  33. 
Caveat,  34. 

Chancery,  Court  of,  19,  24,  25,  29,  34,  35,  41,  42. 

Practice  of,  in  appointing  guardians,  42. 
Chancellor,  24. 

Citation  of  Infants  and  Parties,  36,  39,  41,  43,  44. 
Clark,  Secretary  of  Province  of  New- York,  20. 
.  Clark  V.  Gilmartin,  37. 

Clarkson,  Secretary  of  Province  of  Xew-York,  14. 

Clow's  Commission,  27,  28. 

Clerk's  Instructor,  32,  42. 

Cockburn's  Clerk's  Assistant,  32,  35,  41. 

Coke,  Littleton,  37.    Institutes,  30. 

Collusion,  30,  44,  45,  46. 

Colonial  Secretary,  11,  13,  14,  15,  16,  17,  20,  21. 

Documents  of  New- York,  9,  17,  20. 

Governor,  10,  21. 
Commissary,  15,  16,  18,  30. 
Commissions,  15,  17,  18. 
Commissioners,  37;  of  Deeds,  18. 
Commissions,  Book  of,  7,  15,  17,  21. 


49 


Common  Council  of  New-York,  Records  of,  10. 

Common  Law,  19,  27,  29.    Courts  of,  34,  25. 

Common  Pleas,  Court  of,  14,  17,  18,  25. 

Conclusive,  when  decree  is,  32,  accounting  is  when,  42. 

Conclusion,  rescinding,  what  it  is,  32,  ?3. 

Constructive  authority,  7,  28. 

Contempts,  29. 

Conveyances,  26,  29,  40. 

Conklin  v.  Hill,  38. 

Constet's  Practice,  32,  34,  36,  37. 

Corwin  v.  Merritt,  30,  31. 

Cornbury,  Lord,  14,  15. 

County,  23. 

Council  of  Revision,  10,  19. 
Counsel,  2,  32,  34. 

Courts,  Special  and  General,  37.  Ecclesiastical  and  Spiritual,  7,  23,  29,  30,  32,  35^ 
37,  39,  41.  Diocesan,  30.  Peculiars,  id.  Royal  Peculiars,  id.  Of  Hust- 
ings, id.  Orphans,  id.  Manorial,  id.  Of  Orphan  Masters,  10.  Of  Record,  18, 
30.  Of  Appeals,  31.  Of  Chancery,  19,  24,  25,  29,  34,  35,  41,  42.  Su- 
preme Court,  18,  25,  29.  Common  Pleas,  14,  17,  18,  25.  Of  Equity,  40, 
41,  42.  Burgomaster  and  Schepens,  9,  10.  Mayors,  10,  11,  13.  Pre- 
rogative, 13,  14,  15,  16,  17,  18,  19,  20,  21,  25.  Probates,  21,  22,  23,  24, 
25.  Probate  of  Indiana,  41.  Sessions,  11.  13.  Assize,  10.  Surrogates 
6,  7,  23,  26,  33. 

Creath  v.  Smith,  40. 

Creditor,  36,  42. 

Crown,  14.  ♦ 

Cummings,  Alexander  and  Green,  2. 

Curator,  9. 

D 

Dakin  v.  Hudson,  24,  SO, 
Daly,  Hon.  Charles  P.,  2. 

Daly's  Judicial  Tribunals  of  Xew-Tork,  9,  ;0,  20. 

Daniel's  Chancery  Practice,  40. 

Dawson  Ex  parte,  36. 

t)ay,  to  Infant,  to  show  cause,  41. 

Debts,  18,  23,  24,  26,  39. 

Decree,  23,  25,  26,  30,  31,  32,  34,  35,  39,  40,  41 
Default,  31,  32. 

Deputy  Secretary,  14,  15,  16,  17,  20. 

Delegate,  Governors,  15,  17.  Local,  17,  IS,  20. 

Diocesan,  Court  of,  1 5,  30. 

Distribution,  16,  23,  24,  25,  26,  31,  39,  4<\ 

Documents,  19,  24,  26,  27. 

[Doran  v.  Dempsey,  30.  * 

Donnellan  v.  Donnellan,  33. 

Dower,  24,  26. 

Duke's  Laws,  10,  12. 

I  4 


E 

Eagleston  v.  Kingston,  35. 

Ecclesiastical  Jurisdiction,  12,  17,  23,  25,  35,  41,    Courts,  see  Courts. 

England,  7,  18,  29. 

Equity,  Courts  of,  19,  40,  41,  42. 

Errors,  Court  of,  19. 

Estate,  10,  17,  23,  27,  45. 

Evidence,  32,  35.    New,  35. 

Examiner,  20. 

Executor  and  Administrator,  9,  16,' 17,  18,  19,  23,  24,  26,  27,  28,  43,  44,  45,  40. 
Execution,  19,  24,  26. 
Expenses,  23,  26. 

Eyre  v.  Countess  of  Shaftesbury,  42. 

F 

Farrell  v.  Smith,  31. 

Ferrie  v.  Public  Administrator,  35. 

Fletcher,  Colonial  Governor,  14. 

Foot  V.  Stevens,  38. 

Foreclosure,  40,  41. 

Fraud,  30,  31,  44,  45. 

Fund,  39. 

G- 

Gibson's  Codex,  13,  16,  23,  30,  32,  34. 
Governors,  Colonial,  7,  13,  14,  17,  18. 
Governor  General,  10,  24,  25,  26,  36,  37. 
Government,  State,  27,  28. 
Godolphin's  Orphan's  Legacy,  32,  34. 
Granson  v.  Dorn,  31. 
Greenleaf 's  Laws,  23. 

Guardian,  Testamentary,  5,  18, 36,  45.  Effect  on,  of  Marriage  of  Ward,  0.  General, 

31,  36,  37,  42.    Ad  Litem,  36,  37,  38,  40,  41,  42. 
Guardianship,  Letters  of,  29,  32. 

H 

Ilammerton  v.  Hammerton,  82,  85. 

Hardwicke,  Lord,  6,  42. 

Heirs,  24,  26. 

Henley  v.  Doddridge,  35. 

Hoffman,  Hon.  Murray,  2. 

I 

Identity,  33. 

Indiana  Probate  Court,  43. 

Infants,  5,  6,  24,  31,  36,  37,  40,  41,  42,  43, 44, 4a,  46.    Consent  of,  37.    Bound  by 

decree  when,  40. 
Incidental  Powers,  7,  27,  28,  37. 
Ingram  v.  Wyeth,  32. 


51 


Instruments,  26. 

Intestates,  H,  18,  22,  23,  2-i,  25,  26,  27. 
Items  in  Accounts,  38,  40,  44. 
Inventories,  17,  21,  22,  27. 

J 

Jack  V.  Davis,  37. 

James,  Duke  of  York. 

James,  A.  B.,  Judge. 

Jekyl,  Sir  Joseph,  42. 

Jephsont'.  Reirs,  35. 

Ingoldsby,  Lieut.-Governor,  13,  15. 

Jongsmay.  Pfiel,  37. 

Jurisdiction,  6,  16,  17,  25,  28,  42,  45.    Of  Surrogates,  7,  8,  9. 

K 

Kellett  V.  Rathbone,  36. 
Kellinger  v.  Roe,  37. 
Kent's  Commentaries,  37. 
Kin,  next  of,  18,  29,  39,  43. 
Kings  County,  14. 

Ivnickerbocker  v.  De  Freest,  37,  38. 

L 

Lacbaire,  his  New- Amsterdam  ^^tarial  Register,  10. 

Lands,  23,  24. 

Laton  V.  Laton,  30. 

Legacy,  18,  23,  25,  26,  39. 

Legatee,  31,  39,  43.  f 

Leasing,  24,  26. 

London,  Bishop  of,  12. 

Lords  of  Trade,  14,  20. 

M 

Manorial  Courts,  30. 

Mackey  v.  Gray,  37. 

Marriage  Licenses,  17.    Records  of,  17. 

Mason  v.  Denniston,  37. 

Mallock  V.  Golton,  41. 

Mayor's  Court,  10,  11,  13. 

Metropolitan,  16. 

Middleton  v.  Middleton,  33. 

Miller  v.  Denis,  40. 

Miller,  Sylvanus,  19. 

Minutes,  19. 

Mirrors,  37,  40,  41,  44. 

Mistakes,  19,  31,  32. 

Moore,  Colonial  Governor,  20. 

Monk  V.  Butler,  38. 

Mortgaging,  24,  26. 


52 


N 

Xapier  in  re,  31. 
New-Amsterdam,  Custom  of,  t>. 
New  Evidence,  35. 

New- York,  Colony  of,  21.    City  of,  21. 
New  Trial,  34,  36. 
Next  of  kin,  39. 
Nieholl,  Sir  John. 
North,  Lord  Keeper. 

o 

Oath,  18.  28. 

O'Brien  v.  O'Connor,  34. 

O'CalLa^han,  E.  D.,  History  of  New-Amsterdam,  9'. 

Translation  of  Vertoogh,  9. 
Offices.  20. 

O'Gorman,  Richard,  Esq. 
Orange  County,  14. 
Ordmary,  14,  15,  89. 
Oi'dcrs,  25,  26,  31. 

Orphans,  9.  18,  30.  Court  of,  30.  Court  of  Orphan  Masters,  10. 
Oughton's  Ordo  Judiceorum,  34,  39. 

P 

Faff  i'.  Kenney,  29. 

Papers,  19. 

Peck     Holstead,  37. 

Peculiars,  Court  of,  30. 

People  V.  Corlies,  30. 

PcAV  V.  Hastings,  31. 

Personal  Estate,  23,  24,.  26,  27. 

Petition  for  review,  45.  Statements  of,  36. 

Petitioner,  4,  5,  36,  45,  46. 

Powers  incidental,  7,  27.    Of  Surrogates,  7,  26,  27,  32,  37. 
Powell  V.  Millbank,  38. 

Practice,  32,  38.    Of  Ecclesiastical  Courts,  32,  33,  34,  35. 

Procedure,  course  of,  in  Ecclesiastical  Courts,  34. 

Proceeding,  31. 

Proctors,  2,  42. 

Proctor  V.  "Wanmaker,  31. 

Probate,  4,  17,  22,  23,  26,  29,  32,  34,  35,  41. 

Courts  of,  41.    Indiana  Court  of,  41. 
Probates,  Court  of,  19,  20,  21,  22,  23,  24,  25. 

Clerk  of,  21. 
Pi-crogative,  21.    Office  of,  14.     Seal  of,  17,  19. 

Court  of,  16,  17,  18,  20,  25  ;  Courts  of  the,  in  England,  Sc; 
Predecesj^or,  24,-27. 

Publication,  what  is  in  Ecclesiastical  Courts,  S3. 


^3 


R 

Rainor  s  Case,  30. 
Real  Estate,  2(\  87. 
Reiiccouuting,  38,  40. 
Recoi'ds,  10. 

Resciuding  conclusion,  what  it  is  in  Eeclesiastic^il  Courts,  32 
Registrar,  14. 
Registry,  16,  10. 
Rehearing,  29,  34,  41. 
Revisors,  7. 

Review,  35.    Bill  of,  34,  41. 

Revolution,  American,  19,  2i>,  25. 

Revised  Statutes,  6,  T,  8,  9,  25,  20,  27,  28,  29,  30,  43. 

Rex  i\  Hawkins,  38. 

Richmond  County,  14. 

Rochefort  v.  Xugent,  35. 

Royal  Peculiars,  Courts  of,  30. 

s 

Sale  of  Lauds,  24,  25,  26. 
Schepens,  10. 
Schout  Fiscal,  9. 
Schoolmasters,  17. 
Scale  V.  Price,  32. 

Secretary,  Colonial,  13, 14,  15,  10,  17,  20.  Office  af,  14.  Deputy,  14,  15,  l-'.  17.  20. 

Sentence,  32,  33,  34,  39. 

Service  of  Citation,  30. 

Sessions,  Courts  of,  11,  13, 

Settlement,  44.  'f 

Seymour  v.  Seymour,  24. 

Shannessy  v.  Allen,  31. 

Sheffield  v.  Duke  of  Buckinghamshire,  40,  42, 

Shield  v.  Power,  40. 

Sipperly  v.  Baucos,  8,  31. 

Skidmore  v.  Davis,  31. 

Smith  r.  Palmer,  37. 

Sparrow  v.  Norfolk,  23, 

Stone  V.  Atwell,  37. 

Stoutenbergh,  John  A.,  Esq.,  2. 

State  Govei'nment,  27,  28. 

Supreme  Court,  18,  25,  29,  35. 

Sloughter,  Governor,  12. 

Surrogates,  18,  19,  20,  21,  22,  23,  24,  25,  27,  28,  29,  30,  85,  36,  38,  43.  CourtL^ 

of,  7,  23,  28,  29,  35.    Powers  of,  7,  26,  27,  29. 
Swearing  witnesses,  28. 
Swinburne  on  Wills,  39. 

T 

Taylor  v.  Shaw,  31. 
Testamentary  Letters,  25,  26. 


54 


Testators,  24,  26. 
Thornton  v.  Blackbume,  41. 
Tollers'  Law  of  Executors,  30,  35. 
Tomlin's  Law  Dictionary,  29. 
Trade,  Lords  of,  14,  20. 
Trimbleton  v.  Trimbleton,  31,  34. 
Trial,  new,  34,  35. 
Tryon,  Governor,  20. 
Turner  v.  Felton,  36,  44. 
Turvies'  Case,  39. 

V 

Van  Cott,  Gabriel,  Esq.,  2,  36. 
Van  Veen,  Notarial  Register  of,  10. 
Vertoogh  of  New-Xetherlands,  9. 
Vredenbergli  v.  Calf,  31. 

w 

Wall  V.  Bushley,  40. 

AVatkins  v.  Bligli,  8,  32. 

Webb  V.  Webb,  33. 

Wentz  V.  Jenkins,  40. 

Went  worth,  office  of  Executor,  30. 

Westchester  County,  14.. 

Williams  v^.  George,  35. 

Williams  on  Executors,  13,  30,  31. 

Willard  on  Executors,  38. 

Widows,  18,  24,  26. 

Webster,  law  of,  24. 

Whitecliurch  v.  Whitechurch,  41. 

Wills,  11,  17,  22,  23,  24,  25,  26,  27,  29,  32. 

Execution  of,  35.    Records  of,  in  New-York  Surrogate's  Office,  10, 12, 13, 
14,  15,  17,  22,  26,  41. 
Witnesses,  16,  24,  27. 
Woodham  v.  Moor,  40. 
Woodruff,  Hon.  Lewis  B. 
Wriglit  V.  Jenkins,  40. 
Writings,  24,  26,  27, 

Y 

York,  Duke  of,  10. 
Young  V.  Kelly,  34. 
Young  r.  Skelton,  42. 


\ 


ii 


i 


